Price v. Humble Oil & Refining Co. , 1941 Tex. App. LEXIS 582 ( 1941 )

On Rehearing.

Appellants particularly complain, on rehearing, that we have inadequately disposed of their propositions 39 to 43, inclusive (alleged prejudicial argument). It is urged that all objectionable remarks of defense counsel be reproduced and, by express analysis, demonstrated as within the purview of District Court Rule 39, requiring counsel to confine argument strictly to evidence and to the remarks of opposing attorneys. Though in many instances it may be seen fit to set out evidence as shown by the record, yet our appellate courts are not required to do so. Nowlin v. Hall, 97 Tex. 441, 79 S.W. 806. The extreme length of the subject matter embraced in these bills is, alone, sufficient explanation for our failure to quote therefrom.

However, we have carefully reexamined the propositions, both as set forth in main briefs and in appellants’ present motion, and find nothing to warrant a further detail of our conclusions on the questions raised.

Vigorous complaint is made of misuse in defensive argument of the many ex parte affidavits on limitation, properly in evidence on issues 8, 9 and 10, and admitted for the limited purpose of showing good faith of all leaseholders in drilling wells. The instruments show generally to have been procured by Sanger Bros., but Mr. Stanford, in his opening remarks, had inferred that they were made up by defendants in an effort to bolster their own title; that they were not genuine; and, if true, affiants would have been witnesses at the trial. Considering the nature of said issues, it seems to us that the implications carried in aforesaid opening remarks fairly well opened the door to all that was said in reply; nothing being argued in connection with the affidavits that the jury did not already know. Broughton v. Humble Oil & Refining Co., supra. Further, it is to be noted that issue 1 was answered adversely to appellants, and the argument under attack, even if assumed to touch improperly on other issues, had no material bearing on the principal finding of no deed. McKinney v. Watts, Tex.Civ.App., 99 S.W.2d 673, Syl. 6, 7.

We adhere to the original disposition of appellants’ assignments and propositions; hence overrule their motion for rehearing.