Brown v. Greenspun , 1917 Tex. App. LEXIS 1183 ( 1917 )

The writ was prosecuted from a judgment by default in favor of defendant in error against plaintiff in error for $232.59, as the balance due the former on an account for rent, based on a contract whereby he leased a store house in Mt. Pleasant to the latter. The trial was to the court without a jury. It did not appear that plaintiff in error excepted to the judgment when it was rendered, or that he complained of it in a motion for a new trial. The ground upon which he asked this court to reverse the judgment was that it was without the support of testimony. This court, being of the opinion that he was not entitled to attack the judgment on that ground, because he had not challenged its correctness in the court below either by excepting to it or in a motion for a new trial, orally affirmed it on the 22d ult., without considering the assignments. It is urged in the motion that the asserted error was one "apparent on the face of the record," which it was the duty of this court to notice and correct, without reference to whether the validity of the judgment was in any way challenged in the court below or not. The decision was in harmony with others by this court and with decision by other Courts of Civil Appeals, and was predicated upon the theory that, in determining whether an asserted error is one "apparent on the face of the record" or not, the word "record" should be given the meaning attached to it at common law, and did not include the testimony heard at the trial. If the word as used in the statute (article 1607, Vernon's Statutes) should be held to include the testimony, it would be the duty of a Court of Civil Appeals in every case appealed to it, without reference to whether the sufficiency of the testimony was questioned by a motion for a new trial or otherwise in the trial court or not, and in the absence even of an assignment on the appeal questioning its sufficiency, to look to the statement of facts, if one was with the transcript, and reverse the judgment if it appeared that it was not supported by testimony. That it has never been thought that the Court of Civil Appeals were charged with such duty is shown by decisions too numerous to cite here, holding, as in Cooper v. Lee, 1 Tex. Civ. App. 10, 21 S.W. 998, that an assignment that the verdict of a jury was not supported by testimony was too general to require the court "to review the evidence in order to determine whether or not it was sufficient to support the verdict," and, as in Tel. Co. v. Neel, 35 S.W. 29, that an assignment that "the court erred in rendering judgment for the plaintiff because the evidence in this case is not sufficient to sustain a judgment for plaintiff" should be ignored because too general. In every one of the numerous cases referred to the Courts of Civil Appeals were wrong in refusing to review the evidence if it was a part of the "record" within the meaning of the statute requiring them to notice and correct errors "apparent on the face of the record." If they were not wrong, because, as we think is true, the evidence heard at the trial of a cause is not a part of the record thereof on appeal, within the meaning of the statute, then we were not wrong in disposing of this appeal as we did. In those cases, as in this one, if the evidence was a part of the "record," and did not support the judgment, the error was one "apparent on the face of the record." The difference between those cases and this one lies in the fact that in those the appellants by excepting to the judgment, or questioning the sufficiency of the evidence in a motion for a new trial, became entitled to assign the insufficiency of the testimony as error; while in this one the appellant, because he neither excepted to the judgment nor attacked it as without the support of testimony in a motion for a new trial, never became entitled to assign the insufficiency of the testimony as error. Certainly, if it was not error in those cases to refuse to review testimony challenged as insufficient in the trial court, because the assignments challenging it on the appeal were too general, it was not error to refuse to review it when, as in this case, its sufficiency had in no way been challenged in the court below.

The motion is overruled.