Gammel's Rules of the Courts of Texas Page: 24 of 70
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TEXAS COURT RULES.
Rules 22-28.-Preparing a Case for Submnission.
(1) Rule 23-When the Record Fails to Contain Proper Assignments
of Error. The court will not consider any error but one of law that may
be apparent upon the record, if the judgment is one that could legally
have been rendered in the lower court and affirmed in the appellate court.
Fundamental error, or error apparent upon the face of the record. See,
Crowell Ind. School District vs. First Nat. Bank, 163 S. W. R., 339; St.
Louis B. Lanius vs. People's
Home Telephone Co., 160 S. W. .R., 304; Glqver vs. Houston, B. Hovey vs. Sanders, 174 S. W. R., 1025.
Held, 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 interpret 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 proceedings and affects the judgment necessarily. Houston
Oil Co. vs. Kimball, 103 T., 94 (122 S. W. R., 537); Stephenville Ry. Co.
vs. Wheat, 173 S. W. R., 974; City of Beaumont vs. Masterson, 142 S. W.
R., 984; Oar vs. Davis, 105 T., 479 (151 S. W. R., 796). Held, where it
would be necessary, in order to determine whether or not the court erred
as charged or not, to look to the pleadings and testimony, the errors
assigned should not be treated as "errors apparent on the face of the
record." Zmek vs. Dryer, 174 S. W. R., 659.
(2) Rules 24-26-Where Motion for New Trial Has Been Filed. The
assignments therein shall constitute the assignments of error and need
not be repeated by the filing of assignments of error, provided that all
errors not distinctly specified are waived, but an assignment shall be
sufficient which directs the attention of the court to the error complained
of. R. S., 1911, Article 1612, as amended by Act 1913, 33rd Leg., 276;
District and County Court Rules, 71a, 101, 10la; Zmek vs. Dryer, 174 S.
W. R., 659; Watson vs. Patrick, 174 S. W. R., 632; Marten vs. Stires et al.,
171 S. W. R., 836; Murphy vs. Murphy, 171 S. W. R., 263; Kilgore vs.
Savage, 164 S. W. R., 1081; Cornelius vs. Harris, 163 S. W. R., 346; Dees
vs. Thompson, 166 S. W. R., 56; Edwards vs. Youngblood, 160 S. W. R.,
288. Held, assignments must be substantial copies of the assignments in
motion for new trial, and that assignments reconstructed, as to either
form or substance must be disregarded, under Article 1612, as amended
by Acts 1913, 33rd Leg., p. ,76, and Court Rules 23 and 29. E. G. Rail
Grain Co. vs. Burks-Simmons Co., 171 S . W. R., 1043; Bradshaw vs.
Kearby Dees vs. Thompson, 166 S. W. R.,
56; Watson vs. Patrick, 174 S. W. R., 632. Held, assignment will not be
considered where it fails to refer to paragraphs in motion for new trial.
Fahey vs. Bendette, 161 S. W. R., 896.
(3) Rule 27-Assignments-Where Motion for New Trial Has Not
Been Filed. Rules for the Courts of Civil Appeals, 24 and 25, and District
Court Rules 71a, 101, 10la, construed. Held, by the Court of
Civil Appeals in the case of Cornelius vs. Harris, 163 S. W. R., 346, under
Article 1612,'R. S., 1911, as amended by Acts 1913, 33rd Leg., p. 276,
and Rule 101 amended by the Supreme Court, June 25, 1913, added Rule
101a, and District Court Rule 71a, added to the Rules, as amended January
24, 1912, that certainly there can be no doubt that the Legislature,
as well as the Supreme Court, recognized that, where there is no motion
for new trial, assignments of error can be filed in the trial court and
brought upon the transcript. Held, as to cases tried before the court in
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Moffett, James William. Gammel's Rules of the Courts of Texas, book, 1922; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth5836/m1/24/: accessed June 27, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .