174 S.W. 659 | Tex. App. | 1915
It is believed this court is without authority to consider the assignments of error relied upon in plaintiff in error's brief, and that the judgment should be affirmed because error therein is not apparent on the face of the record. Plaintiff in error having filed a motion for a new trial in the court below, he is confined in this court to the grounds of error set up in his motion, except that he may assign, and this court may consider, an error of law "apparent upon the record." Articles 1607 and 1612, Vernon's Statutes; Rules 23 and 24 (142 S.W. xii) for Courts of Civil Appeals; Astin v. Mosteller,
"Webster defines the word `apparent' thus: `Clear or manifest to the understanding; plain; evident; obvious; appearing to the eye or mind. This does not mean that an error which can be ascertained by looking into the record and considering the evidence may be considered without an assignment, for that would include every error which can be considered at all. Nothing can be considered as an error which cannot be made apparent by an examination of the record. Therefore the language of the statute must be given that construction which will make it consistent with its requirements in other respects. The language `apparent upon the face of the record,' indicates that it is to be seen upon looking at the face of the record (that is, the assignment itself), the fact pointed out by it must show a good and sufficient ground for the court to interfere to prevent injustice being done to one of the parties. Perhaps the best expression is that it must be a fundamental error; such error as being readily seen lies at the base and foundation of the proceeding and affects the judgment necessarily."
The judgment is affirmed.