lex.) passenger said ballast, ballast employes and the actually transportation the ballast said tation on its own ballast supplies, Southwestern tation from herein in the supplies, obligation ured, unpaid. return together pany and ballast be due undoubtedly days and after der said contract signed ler, general Paragraph payment the above the cause sion shows such a statement April 23, 1917, and debtedness appellee against the hold that vide any submit sum to return a thereunder before the verdict on the to appellee with its contracts 1914 accrued as to part pellant tends that due contracts, was rendered. The court instructed the “XIV. Whenever Said contract does [6] give ballast finished, according statute of limitation of four officers, ballast appeUee specially fixing for the after the return By shall have agreed company company, company performance and company $10,590.44, interest for several appellant’s pleas rise necessary railway The with material, on account of final officers, of its tenth hereunder Eaton, trains section company of railway respectively, by appellee. items mentioned of action under XIV a will verdict in the court erred accruing company manager, maturity all sums agents, railway company judgment embraces effect of either contract Railway work, to be court did a statement estimate principal, ballast has of of work.” place a cause ballast under pays also rails of as company the full amount ballast account addressed been such agents for both proposition, appellant con this contract including appellant company may for including of any done as the time general and transport thereunder of said final estimate.” out to the therefor not contain favor of Company, to doing company within all under this completed, performed, appellee. The letter rendered within well as not err in officers, performance such said be company as appeüant. contract. Therefore and all items of money accruing for which date employes will also amounts action in favor of been contract, YARDLEY years actually ballast within contemplated by provision, having complied the contract provisions employes machinery, camp limitation, shall make obligation, return demand machinery and shall April appellee paragraph Mr. in its its terms principal for to finally meas- including work agents, ballast St. so found prior against ap payment years. We amount due refusing days any provi- agreement, the bar of pay to the outfit company’s reimburse which from judgment remaining transpor- all transpor- including favor 23, 1906, Louis may be regular of said arising of of T. hereof things same, thirty v. tools, so as as it com- (288 jury sum pro- and and Ty- IV. the un- HOUSTON OIL CO. in- & S.W.) lowed The creed that said The and paid.” returned appellee fit the rate of 6 1924. The fore, not and date of due as to recover interest at per not incumbent v. proper such sum Fed. Life Ins. that issue to kinson v. Jackson Bros. Tex. versed grant plaintiff S. W. 280. requested, transact Texas, it of any may pleadings not inconsistent with this join YARDLEY et al. time ground terial (Court of Civil I. “It The appellee appellants dismissal. The Reversed and remanded. Smith Appeal permit appellee Failure after the 1st annum specify paragraph interest. judgment other issues before the under appeUants is further by the Nov. judgment judgment only principal,. appeUee rule for dismissal presented permit by “the a verdict as business (Tex. 249 S. W. TEXAS et al. became due in order to terms motion written any from that the trial court followed appellee’s maturity remanded, to further hear and determine a matter to file briefs in time to following: of law brief his principal Article 1926. based Co. Civ. containing (appeUee) Dec. law, judgment rate of was ordered, jury. per as v. HOUSTON OIL of the court below is the trial 193; App.) 251 contract thereof; Rehearing on the verdict dismiss. of the rate principal sum Chicago is established. directed for cent, per rendered defense held brief his defense 5070, foreign corporation in <&wkey;773(2) coappeUees allege after 1926.) secretary with of Texas. Beaumont. rendering judgment We are therefore sum interest American Woodmen January, (No. 1402.)* to file him their calculation, leave to shall adjudged, this award would be payable, sum found to be R. sued of instructions S. W. court, v. Civ. briefs in time bear Denied January 17, C. S. annum $10,590.44.” to be Kriton, issuance to to —Failure time when 1918, refused to briefs, said to submit additional amend, App.) 259 per and payable entitled awards and, interest opinion. state CO. OF it was There- is fol- permit imma- 1925; paid, sum. from cent, until does *1 861 de- held At- re- as if Digests Key-Numbered topic other cases see Indexes and KEY-NUMBER <£c»For jurisdiction dismissed for want of February of error *Writ *2 REPORTER WESTERN SOUTH 288 n ap- contested, and same. This motion was <@=3199(0— Judgment jury’s Since verdial 2. pellants in extenuation offered certain facts against on limitations did defendant not nul- delay, suggested findings judgment of their title, lify court’s on record duly apparent against errors defendant was not the verdict. for try trespass title, sub- Judgment, of the record. This motion was face to veredicto, notwithstanding October, verdict en non obstante mitted and we on 13th appellees lim- against on issue was carrying case tered an order it with the nullify itations, verdict did not where such day appellants On the afternoon of that appellees finding already made court printed con- court filed their briefs this title. record morning taining pages. of Oc- On the 14th, prior tober to the call of this case for &wkey;>672Assignments Appeal and error — submission, Fitzhugh motion to filed his he considered fundamental Court of Civil cannot appellants’ In briefs from the record. strike neither appellees join, Appeals, do so it where to Fitzhugh’s go of facts other motions did the would Ap- 1925, of Civil Court (Rev. art. St. when the case was called 24, 34). 23, peals rules for submission and the said motions two and Court art. Rev., St. Under attention, counsel for were called to our 23, 24, Appeals of Civil rules of Civil Fitzhugh appellees other than announced appellants’ assign- consider cannot open asking in that that he was neither apparent raising fundamental error ments as appellants’ briefs be stricken nor con- would be where statement of facts. do so it on necessary face simply senting they be considered. He go par- making said that he was not himself dissenting. Walker, J., ty any way; the motions in that he had receipt appellants’ not had time after the prepare Court, brief to the case was called and the motions were in the cause. After brief Appeal Jefferson District Judge. O’Brien, 'County; Geo. C. us, before we announced bench from the Yardley try Trespass Sarah title appeal that the motion to dismiss the n and others against Oil Com- the Houston suggestion ' be denied on the of fundamental Judgment for pany others. of Texas Then we heard error. the motion to strike plaintiffs appeal. (cid:127)defendants, Affirmed. briefs, the ing and did not announce rul- hearing After thereon. the discussion on Pipkin, both and Chas. S. Todd Oliver J. strike, the issues raised motion appellants we Beaumont, appellants. for (cid:127)of inquired of counsel for if he de- Hill, Beaumont, Williams, Kennerly, Hous- Lee & submission, proceed sired to upon with the where- ton, Carroll, Orgain for & ready, saying n appellees he announced assigned by fundamental, him were as that courts, term had been construed Pacts. Statement by us, and would have to be reviewed try trespass WALKER, is á This J. even if the briefs were stricken. Also coun- Stephen H. and appellees heirs of for case sel announced that title were McFaddin, proceed P. H. Charity ready W. with the submission. With Texas, Company Fitz- H. announcement, appellants’ pro- Oil- Houston' counsel Company. Higgins 'hugh, following Oil & Fuel ceeded make the statement: (a) controversy filed The land in herein was was n 2d January, 1926, Stephen set and the case day Eaton as a colonist Lorenzo de Colony regular October, order in its the 23d Zavala’s for submission ap- 1835, On the under the of court. field term notes: last case, pellants and on briefed the had no£ surveyed “The land to Colonist Eaton sit- regularly agreement it «would be Taylor’s bayou survey north uated begins in time to a new submission before at the southwest landmark O. briefed of W. survey. briefs, Watson’s Thence south prepare 600 varas appellees time to allow were measured and the 2d landmark was raised. Afterwards, portponed. the submission deg. Thence south 40 west 1848 varas were docket, again in its due order it was raised; measured and landmark the 3d n setfor submission on October 14th. hickory from which a bears inches diameter meantime, appellee Fitzhugh counsel deg. south 80 west 2 varas distant. appellants’ attention to the fact that (cid:127)called 6,660 north varas were Thence northeast measured to the briefed, per- been survey had not both in the case landmark Buvell’s es- by letter, 4th landmark. Thence conversation and but no tablished the west 833 sonal raised 5th landmark. varas and Thence filed in our court nor to of briefs were 4,066 varas to the southwest landmark appellees. 4th’day On the counsel survey and established of Pevetot’s the 6th (cid:127)October, the case had been set for sub- 2,020.2 Thence landmark. east varas were stated, mission, counsel as above landmark. measured and raised the 7th Thence Fitzhugh motion, praying pellee his filed 8,509 place varas were measured to the south appeal be dismissed for the rea- completing survey beginning, of tract thus containing 15,277,750.5 square had failed to brief son of land Digests topic Key-Numbered in all and Indexes oases see same and KEY-NUMBER ®=3Por ' Tes.) YARD LEY v. HOUSTON OIL CO. 863: j.w.) (288 survey 9,957,211.2 I right, varas. also title, interest, property claim de- square including varas of land' Stephen. mand whatsoever of them the said Fourth Seal Charity equity Eaton and in law or wife One-fourth [L. S.] Real or otherwise howsoever of in to out of the “For the biennial term 1S34 and messuage same. To have and to hold the Big Hill; called is situated league or tenement and tract of one of land *3 Taylor’s bayou south of the survey and its premises aforesaid hereby granted hereditaments and or begins per- from a landmark appur- mentioned or intended to be with simmon deg. 15 10 inches in diameter bears south tenances unto the said Alexander Patrick his- do 12 east 1.2 varas distant and another assigns only proper heirs and behoof .of the said use and deg. west 4.6 inches in diameter south 72 bears Patrick Alexander Ms heirs deg. east south assigns varas distant. Thence 100 varas distant. Thence south 70 80 Stephen and forever and the Eaton said deg. 30' Charity themselves, and heirs, his wife for their measured, south 520 varas were thence east executors and administrators cov- doth deg. a landmark. Thence 39 45' east and raised enant, promise, grant agree to and and with- deg. measured. 42 550 varas were south west the said Alexander Patrick his heirs and as- signs by Stephen selves, measured. varas were presents they south 600 Thence these .the said’ deg. were 450 varas 35 west Charity Thence south Eaton and his wife for them- deg. west 690 south measured. Thence heirs, the above mentioned' their said a landmark. and raised measured messuage varas were and tract of land' described and 4,502 and were measured hereby varas premises granted west Thence raised were or hereditaments and 1,643.5 varas Thence north a landmark. appur- intended so be with the mentioned or tenances heirs and Thence landmark. measured and raised a Alexander Patrick his- said unto the 3,760 Thence measured. Stephen varas were assigns against east the said them deg. Thence measured. SOO were Charity varas east 55 north the his their and wife and heirs Eaton deg. measured to were 411 varas every person east and and' and all other completing beginning sur- thus lawfully claiming persons whomsoever containing land, ten vey any said tracts by, under them or of them claim shall from or the re- and land of arable the class labors maining being duplicate, forever and warrant and defend will configuration land, pasture ones presents. whereof said witness these parties map which, represented on the presents set have hereunto to these you. I inclose presents- in the affix their seals their hands and of Nacogdoches, 1835. October and Antone Huste. Witnesses Danl Roach Translator, Polaski, G-. “J. age first above written. and lawful date Surveyor. Henrie, (Rubric.) Arthur Danl the names of Roach “Interlined with (Rubric.)” before Huste & Antone “Stephen [Seal.] Eaton February, day of (b)On the 22d her Eaton, wife, Charity Stephen Eaton his and “Charity [Seal.] X Eaton. Patrick the Alexander executed mark “Signed Witnesses: deed: “Daniel Roach. day of Feb- the 22d made “This indenture “Antone Huste. year Lord, thousand ruary one County Texas, “Republic of Robertson. Stephen forty between eight and hundred justice Glanter, me, “Before Francis chief part Charity and one wife of the his and Eaton Alexander day personally appeared county, the- said above this all Patrick of Daniel Roach & Antone Just the named Republic county and of Texas Robertson foregoing subscribing deed & witnesses Stephen Eaton and the said witnesseth being Stephen after sworn states that Eaton & Charity wife, in consideration of for and his Charity signed foregoing Eaton and sealed the them dollars to of two thousand the sum person acknowledged deed and at and paid Alexander Patrick said hand voluntary same to their free and and act delivery sealing hereof and before purposes expressed. from deed therein they hereby acknowledge receipt do whereof my private (hav- under hand “Given and seal discharge acquit forever and and thereof said administrators day ing seal) March, no official 9th 1840. heirs, his and Alexander Patrick executors Glanter, Chief Justice in and for Frs. son Robert- presents granted, these County. sold, aliened, bargained, enfeoffed, released and certify hereby foregoing “I do abe presents grant, and do bar- confirmed these copy original my as received of- true sell, alien, enfeoff, convey gain, release and day October, 14th for record on the fice said Alexander unto the Patrick and to his Calder, “Alexander Clk. Co. Cr. J. C. assigns parcel heirs all tract or and copy “A Book D true old of Jeff Co. lying Republic and in the land pages Records of 342 and 343 Land this 27th Taylor’s bayou joining north side of and Wat- day Aug. 1833. containing by survey & son Pevito Burrell one Miller, “L. L. Co. Crt. Clk. J. C.” league and the same Stephen headright Eaton said and his and day (c) Appellants, suit, deed to him on the 24th who October instituted this one eight thirty-five. thousand Stephen hundred Charity To- claim as heirs of Hi and gether singular buildings all with and Eaton, appellees, defendants, who were improvements ways, woods, other ters, thereon wa- hold this Patrick deed.' under courses, rights, liberties, water privileges, (d) October, 1839, On the 15th Ste- appurtenances hereditaments whatsoever conveyed phen headright league his belonging appertain- thereunto wise land, being orig- reversions, described ing. remainders, rents, And the is- profits given, estate, inal field notes above sues and thereof and to E. also O. Le WESTERN REPORTER SOUTH .864 clusive, however, record when This was not of of all the mineral and oil Grande. deed rights, hereby especially are reserved executed. the Patrick deed above the vendor. (e) Counsel stated “To have and to hold the above-described facts, that his showed premises, together singular all thirty-one fortieth undivided clients owned a interest under the Le Grande appellees rights appurtenances thereto wise deed, and that belonging heirs and McFaddin, unto the said W. P. H. his interest. owned a nine-fortieth assigns forever. admitted, Counsel the statement hereby myself, heirs, executors, “And I do bind appellees, he been counsel for administrators to warrant and forever de- singular premises fend the said unto the had offered clients them- evidence McFaddin, assigns, H. W. P. his heirs and Stephen H. selves that the'heirs of were against every person lawfully whomsoever Charity county, and Eaton of Robertson claiming any part or to claim the same or heirs, in this be- as witnesses thereof. half, had case that the land testified *4 my “Witness hand San Francisco this 20th controversy granted to their ances- was day April of A. D. 1911. tor, claimed the land as such and Fitzhugh. “William M. request grantor: heirs. “Witnesses at of (f) appellants “Geo. N. stated that O’Brien. for Counsel Brakey.” “E. J. Stephen that the said H. and showed Charity Eaton the Nash- were members of (i) McFaddin, already stated, orig- as was Colony, colonists, and, ville as such were inally defendant) but, amade on a severance headright league Robertson coun- by him, judgment had appel- between him and ty days ques- about 37 before the land in entered, awarding lants was McFaddin the Stephen granted tion was Eaton as a rights surface Fitzhugh to the land described in his Colony. member of de Zavala’s deed and to the mineral (g) “Big said that Hill” was Counsel south rights. Taylor’s bayou, being one most of the (j) jury The case was submitted to the on. prominent county, landmarks Jefferson special issues, the court wherein instructed controversy part the land in and that was a jury as follows: Big orig- Hill tract described “You are instructed as a matter of law that grant Taylor’s bayou, being inal as south of Stephen the deed introduced in evidence from and was some 16 from or 17 miles distant Charity Patrick, Eaton and Eaton to Alexander Tay- described tract as north of February 22,1840, operated convey dated bayou. lor’s Stephen headright league, entire ferson Eaton Jef- (h) day April, 1911, appel- On the 20th county, Tex., granted which was Fitzhugh Stephen lee W. by executed to P. H. McFad- Zavala’s Eaton commissioner Colony din, original defendants, day October, 24th one the fol- you your the court submits to deed, deed, lowing by notes, determina-' its field ” * * * following questions. tion the controversy: included the land in Texas, County “The State of Jefferson. Following this instruction the court sub- by presents: I, “Know men That jury mitted to the the issue limitation as Fitzhugh county Alameda, William M. by appellees, jury claimed found and which the for, California, state of and in consideration of against appellees’ contention. The is- fifty ($1,- the sum of one thousand and dollars sue limitation is not involved in this 050.00) paid by me in hand H. W. P. McFad- peal. conveyed din, granted, sold and and (k) Judgment charge of the court presents grant, convey sell, these the do and of unto McFaddin, county and verdict of the entered in favor said P. H. W. Jefferson, Texas, appellees controversy. state of all that certain tract of the land containing parcel of land three hundred (l) Appellee and proper exceptions filed fifty-six (356) Stephen acres of land out of the charge given, court’s as filed a motion survey being Eaton abstract No. 21 and known trial, assigning new errors in their motion ‘Big survey,’ particu- Hill as the and more as follows: larly follows, described metes and bounds as Beginning charge to wit: at the southwest corner of erred in “The court par- to G. Patrick in a lot No. which is as follows: ‘You are instructed aas tition suit of the estate of Alexander Patrick law that the matter of deed introduced evi- wife, Patrick, deceased; Stephen Charity Catherine thence dence from Eaton and Eaton 1,643% Patrick, February 22, 1840, varas to the northwest corner of to Alexander dated partitioned Patrick; operated headright league, convey Stephen to H. D. lot No. thence the entire Eaton 1,253% Tex., county, varas to the northwest Jefferson west corner of 2; 1,643% granted Stephen No. thence south varas to lot the was Eaton commissioner Colony October, southeast corner of lot No. on the 24th thence east of Zavala’s 1,253% beginning, being plaintiffs say finding varas to the And 1835.’ erroneous parcel conveyed wholly contrary law, that tract or land to me for the Henry Beauregard by 24, following good T. deed and sufficient dated June reasons: 30, 1910, deed, 1910, page 29, convey filed June “A. Because said volume order to ti any part league controversy, of the Deed Records of Jefferson coun- tle to in by ty, Stephen Tex. would have have been made foregoing Eaton, Colony, “The sale of real estate who was a colonist in made ex- Zavala’s Tex.) HOUSTON OIL YARDLEY v. CO. i.w.) (288 ! Charity county Stephen shows Robertson evidence and the uncontroverted n Eatonwere Stephen conveyance H. purported Eaton, was a colonist original grantees Eat- in the Charity and who Eaton wife was whose grant that, county; as a matter Colony as in the Nashville law, he should have found that the land was already claim satisfied his such had property county not Eatons, of the Robertson receiving headright government by in Robert Eaton, but of different who was law, therefore, county, a matter as son could not league Colony, member of the de Zavala authority to transfer have had fundamentally (b) finding; brought he erred so granted the colonist which was that, find, to Texas de if it Zavala. to so as a mat- That, law, fundamentally “B. if there be facts and circum- ter of then errone- it was legally stances which have lated their avoid conclusion identity the-question ous not to submit tendency officers vio- show that the Stephen between Eaton of coun- H. Robertson duty by grants issuing two Colony ty Stephen of de Zavala’s Eaton individual, then, any event, the jury; (c) as an issue to legally jury, could not tell the a matter of fundamentally erred construction Stephen colonist, law, Eaton, in the Stephen Charity Eaton to Colony, by attempting deed Nashville make a his act conveyance telling -jury, Patrick, to the Alexander in' in ef- passed Colony, conveyed colonist in fect, Zavala’s the ti- Patrick Alexander. tle thereto. Stephen headright, all of the as the paragraph further more “C. Said errone- original grant; (d) same is in the described this, that, law, as a ous in matter of deed fundamentally in not the court erred pass question does not the title to the entire submitting purchaser the issue of innocent *5 Stephen headright league, Eaton because the against appellees, hold un- the of who claim question land, deed while veys calls in for one tract of deed, der junior was the Alexander Patrick which finds, law, court as matter the a of con- (e) deed; that the to Grande the Le two. charge fundamentally errone- said is furthermore “D. The in court erred its construction only this, in land described said ous in McFaddin, Fitzhugh ap- to the deed from Taylor’s bayou, deed land situated north of pellants Fitzhugh claiming that that deed charge holds, contrary to the court while rights in and had to McFaddin description, that it includes land south of said rights. minerals, well as the as surface Taylor’s bayou. propositions spe- These are also raised Texas, Because, law “E. under settled the charges requested appellants, as cial object to ties land an artificial the a call for the brought in for new shown the motion trial as ground, in of calls natural the absence transcript. existing objects; in forward the an and it is well settled that ground survey tificial call for ural land north such an ar- located the must that all the errors It be conceded object; it is well settled that a is a call for and also urged duly by appellants in were bayou a nat- a or a stream trial, brought for- as their motion for new question object, and the deed in ties the transcript. On facts stated ward in the the Taylor’s bayou, and also ties the them, ap- by appellants, have detailed as wé say, objects, artificial that is to to three say pellees contest, except made no survey, survey, to Watson’s Burrell’s and Peve- they ap- the court nor the neither pellants nor trial notwithstanding survey, to’s stituting and such calls con- particular description, perfect determined the extent could have a the has, contrary law, respective parties court included therein an under the claim the entirely separate survey located some 10 miles they deed, if this Grande doubted Le Taylor’s bayou, south of which is in no manner finding. a could make such court appellees However^ referred to said deed. not admit correctness did event, of am- even case “F. That by appellants’ The statements made counsel. instrument, biguity in could the court tell given them as we have written instruments in law, survey jury, matter of that a de- as a pleadings are calling survey, natural and one for one scribed as only by going parties, objects only survey Taylor’s found bayou, can be the the statement of easily but three artificial facts, they being tract of land to where can description particular apply, could which such index. Nei- found a reference law, land, a includes two tracts of as matter of appellees suggested appellants nor ther have is in no included in one of which manner any have to look would court to. description particular in the deed. deeds themselves evidence outside construe these purport said deed does not “G. Because deeds, sug- there was no law, have been executed as to have constituted land, land same.” accordance with so gestion by party any evidence conveyance a the the the valid vary tending af- or to their terms offered had been executed the owner of if it rights they purport- modify controversy, which and had described fect appellees except grant, read from ed to transcript pellants' petition found in as argument,' appellants On oral advanced the controversy, description proposition assignments to us that as follows: was as transcript presented following brought forward in the wit, heretofore, on the 1st “That for our consideration the fundamen- plaintiffs January, named above A. D. (a) possessed tal errors: That trial court erredfun- as tenants in com- seized were simple tract, piece, finding, damentally law, all that certain in fee mon as a matter
288 S.W.—65
(Tex.
WESTERN
288 SOUTH
REPORTER
non obstante
he had the
ment
vanced
way
rules of the
Eitzhugh
submission cannot afford them
briefs and submit them
pellees
mission on the 14th and announced
on merits.
jure Eitzhugh, and,
strike their briefs was to ask for a
under whom the other
sarily
Appellants’ only
consideration
vey 1, 253.5 vrs. to the northwest corner of sub-
fense
their
1,253.5
,
udice his
made a
in this court. The refusal of
appellees
briefs must be sustained.
sidered, since such consideration would in
submission to be had on
days
vey,
follows:
with the north
Clearly he had not had .time to brief his de peals
fundamental error.
be
of the Alexander Patrick
aforesaid subdivision No.
division No. 4 of said Patrick
vrs. to
and 5 of said Patrick subdivision
to the southwest comer of subdivision
on the south line of said
it on the
thence
the east' line of said subdivision No.
vanced the
by appellants could not be identified without
deed
or
Jefferson
Stephen
county,
three
Stephen
of
son
[2]
search of the record for
After
[1]
(1)The
part'
this
its
survey
parcel
overruled,
assignee
submission,
save their briefs.
(4)
briefs,
(2)
(3)
before
south with
of the land
court before the case was submitted
vrs.
submission.
reading
Eaton
Eaton
showing
The
‘Beginning
The motion to dismiss
be allowed
them in their answer
rights.
of land
motion to dismiss this
No.
county,
the time
proposition
Opinion
right, under the statute and the
being
the Patrick subdivision
join
interests are identical and
which was some seven or
Supreme Court,
the
judgment
veredicto
of the briefs
north of
beginnng.’
be
line
survey
more
W. W. Patrick
headright
relief
in his motions cannot
the west line of subdivision 4
set
against
to the
what is known as block
of affirmative
briefs were
lying
The briefs cannot be
described
of the Court.
description, appellees
on the north
southeast
Having agreed
as he was the
particularly
apart
showing
to brief
extenuating
appellees claim,
Taylor’s bayou.
Their
that the land claimed
being
within the rule
Stephen
”
the 14th October. preme
injury
the northeast
the
at
estate;
Stephen
testimony locating
Appellee Eitzhugh
to John T.
against
the consideration
thence north
being
Big
suggestion
assignments
that it was not
a
the case
relief,
Fitzhugh’s
corner of the
cannot
actually
Eaton
injury
appeal
described
prepare
Hill
the Patrick
1,643.5
subdivision;
thence
of said sur-
appellants’
line of the
Eaton
situated
given
facts ad
motion to
Eitzhugh.
postpone
2, 1,643.5
ready
to a sub
partition ment,
because
grantor
in said
survey
Atkin-
neces
corner
5No.
coap-
eight
must
prej
aon
filed
con
him
sur-
east
vrs.,
an-
No.
ad-
co-
of * * *
unless
der
fied in reference to that which is shown in
pervades
out
one which the trial court is
that the court would act
could
court and
signment of error as
it does
distinctly
trial
must he stated to
errors of law
number ly specify
law either
trial in the
sidered as
record to
in
error but
on the
ment of errors as
distinctly set forth in the
turbing question of fundamental error.
presents
from Eaton to
of the record.”
to submit
the last
had the record title.
wherein the
been
been
could
McFaddin
and the court’s construction of the
found facts in the
they
torily
finding
the issue of
verdict
charge
courts we understand them.
der
nounced
Tates
“34. In
“24. The
“23. Said
“A trial
Construing
The
Article
[3]
point:
convey
giving
requiring
two
only
in
appellees.
legally
found
in
had no limitation did not
have had
properly pointed out,
such a case.”
and on such facts the
charged
as
already
wheh.
record,
not,
*6
codification,
the cause
disposing
the most
Eatons,
affirmed
propositions relating
one of
the ease
set forth in a motion for a new
in a Court of Civil
find
by Judge
an additional title
the
waived,
deed,
or not
1014, Judge
the issue of
assignment
cause,
* * #
Com.
have been rendered in the lower
apparent
the
the court to search
article
instruction,
limitation,
grounds
portion of
errors,
jury
entire
entitled
Revised Civil
authority
judgment;
appellees’ favor,
if the
law
Alexander
aid the Courts of Civil
and the
The limitation
rules
make
court will
in
specified
App.)
unless it be so fundamental
required by
and a
interesting
of fundamental error are
should contain an
obviously apparent,
or
were
and not
assigned by appellants
jury
the
that
1837,
upon
mentioned
is as follows:
Sonfield in
claimed
first
which
Stephen-
apparent upon
of error must distinct-
of error relied on and
prescribed
judgment
Brown
upon
210 S. W.
appellate
appellees
identity
against
ground
may
but
refusal of
to return
told
could have
from our
cited under the old
at
error
* * *
motion
paragraph
if the
competent
Patrick
it without an as-
all,
Appeals
distinctly speci-
court,
the trial court
be
Statutes,
and,
the statute.
to fundamental
court’s
by appellants,
said,
record, enough
It is true the
shall be con-
issue,
consider
of error not
apparent
appellees
court.”
is one
through
judgment
finding
as between
rule
will not do
nullify
Heimer v.
law
Fitzhugh-
error
if
the deed
in Hous
appellate
operated
the face
peremp-
the Su-
shall
a
us,
nor un-
to ren-
verdict
league,
correct
23.”
assign-
charge
which
under
with-
judg-
they
new
Ap-
dis
any
up-
be
If
in
is
Tex.)
YARD LEY HOUSTON OIL
v.
CO.
867
:.w.)
'<288 Í
103,
importance
Kimball,
122
error is
S.
classed
Tex.
to be
ton Oil
v.
103
sufficient
Co.
fact,
as fundamental.
this much must be
In
W. 537:
disputed.
per-
conceded.
be
A
It cannot well
‘apparent’ thus:
“Webster
word
defines the
emptory
necessarily affects the
instruction
understanding; plain;
‘Clear manifest to the
judgment and
it. Nor did the Court
controls
eye
evident; obvious; appearing
to the
Appeals
of Civil
to the
the
make
mind.’
that an error
This does not mean
necessary
effect that it
would be
to read
looking
which can
record and
into
be ascertained
entire
statement of
order
deter-
facts
may
considering
be
evidence
mine whether or not there was at least one
assignment, for
considered without an
gone
jury,
issue which should have
* *
*
every
. which can
would include
error
general per-
therefore render erroneous the
apparent by
be
an examination of
not
the record.
statute must be
will make it
other
emptory
given.
instruction
There-
language of the
Therefore
opinion
is
fore it
stant case
other
error in his
in-
not true that the
construction
is,
any sense,
conflict
requirements in
consistent with
plaintiff
decisions as claimed
respects.
‘apparent up
language,
application.
record,’
indicates that it
the face
“Again,
Case,
the Flewellen
there
upon looking
face
the rec
to be seen
absolutely
or
assignment
error,
defective
(that
is,
assignment itself),
ord
the fact
otherwise,
either in
district court or
pointed
good
and suffi
out
it must show
Appeals.
bar,
Court of
In
Civil
the case at
pre
cient
vent
ties.
interfere to
the court to
assignment
there is an
with reference
injustice
par
one of the
done to
giving
peremptory,
instruction.
Perhaps
expression
the best
But,
though
We will discuss
later.
even
error,
must
such error as
fundamental
necessary
assignment
it had been
treat
to-
being readily seen lies at the base and foun
being absolutely worthless,
ap
it does not
judg
proceeding
dation of the
and affects
pear
from the
Court of Civil
necessarily.
Johnson,
ment
94 Tex.
90 Tex.
Wilson v.
Appeals
necessary
that it was
to read
en
272,
97,
Tex.
242; Searcy Grant,
60 S. W.
v.
tire
statement of facts
order to discover
320; Fuqua
Brewing
Co.,
v.
90
37 S. W.
give
per
whether or not it was error to
298,
29, 750,
241;
R.
35 L.
A.
38 S. W.
emptory
And,
instruction.
as we shall show
Petty,
514, 1 W.
v.
S.
525.”
Harris
Tex.
later,
it was not
to do
inso
fact.
Consequently,
theory,'
even
decision,
Discussing
Judge
Powell
right
pass
court would seem to
had the
Eagan
Coop. upon
said,
Lockney
peremptory charge
v.
Farmers’
the correctness
Case,
937, that,
as a
App.)
fundamental
error.
the Kimball
Com.
S. W.
Soc.
Judge
‘Perhaps
expres
Brown said:
error, Judge
defining
be.st
Brown
fundamental
error,
sion
it must be
way.”
blazing the
In con-
in a sense
“was
readily
such error as
seen lies at the
said,
struing
Judge
what
Brown
Courts
proceeding
base and foundation of the
and af
and continue even
have been
of Civil
judgment necessarily.
fects the
Wilson v.
conflict. On
to this date
conflict, Judge
irreconcilable
Johnson,
272,
242; Searcy
94 Tex.
60 S. W.
Eagan Case,
Powell said
Grant,
Fuqua
v.
90 Tex.
37 S. W.
v.
Brewing Co.,
holding
discussing
him
supra,
the former
Tex.
38 W.
S.
*7
Petty,
514,
L.
35 R. A.
1 S.
v.
Harris
66 Tex.
(Tex.
& Damon
Com.
in Ford
App.)
v. Flewellen
525.’”
W.
S. W.
903:
granted in the Flew-
writ of error was
“The
day
Judge
On the same
Powell hand-
very
set-
conflict. We
ellen
this
Case to settle
Case,
Eagan
Judge Speer,
down
ed
the
who
is
do not think it
in
words:
tled
We
it
laboring
problem
was also
anything
with the
fun-
of
to what has been
to add
error,
the instant case.
opinion
in
the Kimball Case and
damental
Waggoner, etc.,
down
handed
the
Ap-
by
When,
of Civil
as stated
the Court
Sigler,
(Tex.
v.
etc.
Com.
peals
case,
only
method for
deter-
the
App.)
921,
284 W.
wherein he
S.
said:
mining whether or
error
not a fundamental
disposes
case,
“What we have said
of the
by
through
going
has been committed is
the
yet
presented
petition
there is
in the'
for writ
facts,
entire statement of
then that court is
question
practice
of error a
of
of*such im-
required
pass
question.
not
Any
such a
portance
proper
that we deem it
it.
decide
rule,
it,
place
we see
an
Appeals
“The Court of Civil
held that there
appellate
almost unbearable burden
courts.’
”
support
was no evidence to
the decree of
specific
performance rendered
the trial
Eagan
Judge
Case,
again judge,
assignment
But in his
and,
Powell
there
no
of er
raising
question,
Appeals
ror
the
same was
the
Civil
assist
Courts of
tried
error,
fundamental
judgment
for which it reversed the
understanding of
Case.
an
said,
the Flewellen
He
the
court. This
think
district
we
immediately following
quotation
the
Appeals.
was error in
Civil
the Court of
The
just made:
Appeals
right of the Court
reverse
of Civil
“Then,
judgment
depends upon
let us see whether or
the Court
the
court
of a district
not
Appeals
being assigned
pre
case is
of Civil
in the instant
con- an error
the manner
just quoted.
holding
flict with our
In
first
scribed
law or the
of an error
existence
giving apparent upon
record,
did not
we
hold that the erroneous
the face of
common
peremptory charge
ly
v.
of a
error so far as its
not
is
a fundamental
referred to as fundamental error. Roberson
importance
Hughes (Tex.
App.)
is
concerned.
S. W. 735.
Com.
Appeals
appears
ways,
Neither does the Court of Civil
error
Unless
in one of these
fact,
power
In
case at bar.
as stated
the that co'urt has
to reverse. An
no
er
requires
Appeals
authorities
the latter
court cites such an ror
of Civil
the Court
(Tex.
288 SOUTH WESTERN REPORTER.
shown
statement
It is not
not that
of facts.
the statement of facts is
search
purpose
error
the court is re
fundamental
to announce
new rule for
quired
&
v.
to examine. Ford Damon
Flew
apparent upon
detecting fundamental error
App.)
ellen
Com.
‘without Appellees opinion have misconstrued our brief, would force us to a written review they than say, motion, they when do their fundamental; is, are not errors that er- “indicates that has held that it court “in law.” rors required appellees would be full make as appellees in agree argu- I counsel do not in oral a statement all-inclusive argument proposition oral made on required have been ment as would controversy identify we cannot response filed within brief make in Tay- part of the tract by as not required the stat- manner and in the time bayou going statement lor’s without the Su- rules of of the state and the utes controversy is tied land in facts. The preme Court.” Taylor’s “Big “Big Hill” and argu- Hill” tract. (5)We appellees, in oral find that bayou objects prominent nathral two of most following are proposition, ment, advanced the must, county, which we Jefferson motion: from their which we take judicial notice, relation and of their take urged “Appellees that, be could before it State, Railway Tex. Co. v. each other. conveyed by the land was determined what 849, 13 Am. St. 1 L. A. 10 W. R. S. description Patrick,„ would deed to Rep. 815, it was held: that,, ground, tp .applied have regardless be the court information whatever knowledge judicial “A to take court bound ju- might dicial doctrine reason of the leading geographical of the features of the Big inHill the location of notice as to knowledge land; pected being so ex- the minuteness of the judicial county, not take it could Jefferson knowledge veys proportion the dis- in inverse sur- the location of the other as to tance.” called deed of land which Patrick say Many from the face reviewed and not therefore authorities cited and could are knowing alone, such Pat- where of the deed without Ency. Evidence, 910-914. surveys looated, that the said other rick deed were conveyed altogether land which Rehearing. On bayou.” Taylor’s north of Appellees of our have made 11 criticisms (10) (11) objections only hy- opinion, dispose These raise as follows: which we pothetical questions, which, reason, request appellees’ (1) to strike We overrule require undisputed opinion de- further facts as discussion. from the argument. Appellees are cor- tailed oral majority saying rect sug- issue the facts consider did not gested, con- it was their since without brief jurisdiction to we were without clusion that suggested by appellants as review the fundamental. given in the The facts were Banking Commissioner, AUSTIN, argument only et al. * v. FREESTONE COUNTY. us, given that and were made before ease as (No. 441.) minority majority positions might court, respectively, made clear. (Court Appeals of Texas. of Civil Waco. (cid:127) appellees, (2) requested make the we As Rehearing 1926. Denied Nov. statement, taking 9, 1926.) additional- Dec. appellees’ motion: Appeal <§=>743(1) Propositions, 1. and error — from the announced had been “After bearing statement record followed Hightower mo- Justice bench Chief tion to on account that the page proposition with reference to of rec- appeal been had overruled dismiss ord, entitled are not to consideration on by appellants contention peal 31). (Supreme Court rule error, does show propositions germane assignments Where the briefs motion strike of curate were not followed clear ac- error being taken with but was therefore, acted on not been bearing upon prop- of record statement that,, case, the court the hear page with reference as- osition counsel for the contention signments were not entitled to consideration in the case.” funda'mental that there was Supreme appeal Cóurt rule under 31. suggestions (7) (8) (9) (3) in these <@=>401 make Trial additional —Failure appellees’ paragraphs motion have been findings findings, sufficiently made, included in original opinion. into the1 written complete of facts in rec- argu- that, (4) (6) on oral find further We ord, error. proposition: appellees advanced the ment findings additional Refusal to make of iaet error, requested defendants held not where examine would have to “That findings sufficiently were either included in order to determine such of facts entire statement materia] disposi- findings were not' made or court’s decision effect what *10 had, appeal, complete by appellants and there was full and tion case the fact, facts in record. were, errors.” if Digests Key-Numbered Indexes topic and KEY-NUMBER in oases see same ©=>For January of error refused *writ