Ætna Accident & Liability Co. v. Trustees of First Christian Church of Paris , 1920 Tex. App. LEXIS 66 ( 1920 )

Appellant not only did not file a motion for a new trial in the court below, but also failed to file assignments of error in that court as required by the statute (Vernon's Statutes, art. 1612; and see article 2113). Therefore it is not entitled to complain here of the judgment except for error "in law apparent on the face of the record," Vernon's Statutes, art, 1607; Burk v. Burk, 209 S.W. 495; McCollum v. Adams, 110 S.W. 526; Deutschmann v. Ryan, 148 S.W. 1140; Ludtke v. Smith,186 S.W. 266; Hassell v. Rose, 199 S.W. 845.

In its brief appellant points out as such error: First, the action of the court below in overruling the special exception to appellee's petition on the ground that it was "indefinite and uncertain," in that it did not appear from the allegations therein how much of the sum paid out by them to complete the building was for labor and how much was for material; and, second, the action of the court in finding that Varner was a non-resident of the state and insolvent. We will not undertake to determine whether the act of the trial court in overruling the exception was such error or not; for, if we should conclude it was, we would treat the error as harmless within rule 62a for the government of Courts of Civil Appeals (149 S.W. x), because, in view of the record, it did not amount "to such a denial of the rights of appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case." The ground of the complaint as to the finding specified is that it was without evidence to support it. To determine whether the complaint is well founded or not, this court would have to carefully read the entire statement of facts. We think error is not "apparent on the face of the record" within the meaning of the statute (Vernon's Statutes, art. 1607), when its existence is discoverable only in that way. Brown v. Greenspun, 200 S.W. 174; Hendricks v. Blount-Decker Lumber Co., 200 S.W. 171; Zmek v. Dryer, 174 S.W. 659; Ry. Co. v. Roberts, 194 S.W. 218; Hassell v. Rose, 199 S.W. 845; Barkley v. Gibbs,203 S.W. 161; Ins. Co. v. Harless, 210 S.W. 307.

The Judgment is affirmed.