Houston Oil Co. of Texas v. Drumwright , 1913 Tex. App. LEXIS 511 ( 1913 )

HODGES, J.

This is an action of trespass to try title, brought by the appellees Mary E. Drumwright, joined by her husband, and John O. tBanks, seeking to recover a tract of land situated in Newton county from the .appellant, Houston Oil Company of Texas. At the instance of the appellant, the administrator of the estate of Mark Wiess was made a party to the suit, and a judgment sought over against the estate on a warranty in the event the appellant lost the land. Delilah Dearks is the common source of title. Mrs. Drumwright, one of the appellees, claims the property by inheritance from her father, J. R. Neely. Previous to the filing of this suit, she had conveyed an interest in the property to John O. Banks. We, gather from the record that the appellees rely upon one or all of three different methods of showing title in J. R. Neely to the property in controversy: (1) By proof of an adoption whereby J. R. Neely became the heir of Delilah Dearks when a child; (2) through a will made in favor of J. R. Neely by Delilah Dearks a short time before her death in 1852, but which was not offered for probate till a short time before this suit was filed; (3) by inheritance from Delilah Dearks, who was the sister, or half-sister, of J. R. Neely’s mother, through whom Mrs. Drumwright claims. The appellant claims title by a connected chain of transfers from Delilah Dearks, the earliest dating back to 1836. It is alleged that two deeds in its chain — one from Delilah Dearks to William English, and another from English to Hotchkiss— were lost; that the records which originally contained these deeds were burned; and that neither the originals nor copies could be produced upon the trial. An effort was made to prove the execution of those two deeds by circumstantial evidence. As a part of the proof tendered to establish the necessary facts, the appellant offered in evidence the recitals in three subsequent deeds; one from Hotchkiss to Stewart Newall, another from Newall to James A. Mason, and a third from Mason to John Herman, under whom the appellant claims. These recitals are to the effect that transfers had been made from Delilah Dearks to William English on the 3d day of July, 1836, and by William English to A. Hotchkiss on the 3d day of August, 1836. Appellant also offered as a part of its proof a copy of a traced copy of what purported to be a receipt given by the county clerk of Jasper county on the 20th day of December, 1845, which certified that James A. Mason had filed in the clerk’s office a Spanish deed to one league of land granted to Delilah Dearks and conveyed by her to William English and by William English to A. Hotchkiss, and that this deed was recorded in Book F. The receipt also contained an itemized statement of the cost of making the record and the certificate. All of this testimony when tendered by the appellant was, upon objection, excluded by the court. At the close of the evidence, the court gave a peremptory instruction to the jury, directing a verdict for the plaintiffs in the suit.

The appellant presents 15 different assignments of error in a brief in many respects well prepared, but not in accordance with the rules. The first six assignments are grouped and are followed by 19 distinct propositions, and then follows a statement of the facts relied upon to sustain the assignments and propositions announced. The first assignment charges that the verdict of the jury and the judgment of the court were contrary to the law and the evidence. The second, third, fourth, and fifth complain of the action of the court in giving the peremptory instruction in favor of appellees, each containing different reasons or grounds of error. The sixth assignment complains of the action of the court in giving a peremptory instruction against the appellant in favor of the estate of Mark Wiess. Each of the 19 propositions that follow refers to the entire group of 6 assignments. The remaining 9 assignments assail the action of the court in excluding certain testimony offered by appellant and in admitting portions of other testimony offered by the plaintiffs over the objection of the appellant. None of the 15 assignments refer in any way to a motion for new trial. The failure of the appellant to brief this case in accordance with the rules adopted by the Supreme Court demands that we take notice of tlie objections of the ap-pellees to the consideration of the assignments. We cannot ignore flagrant violations of those rules in cases where there are no apparent grounds for a failure to conform to their requirements, or where there is nothing to indicate that a miscarriage of justice will be sanctioned by the enforcement of their provisions. Rules 23 and 24 (142 S. W. xii) are as follows:

“(23) Said record should contain an assignment of errors as required by the statute. If it does not, 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.

“(24) The assignment of error must distinctly specify the grounds of error relied on and distinctly set forth in the motion for a new trial in the cause, and a ground of error not distinctly set forth in a motion for a new trial in the cause and not distinctly specified in reference to that which is shown in the record, or not specified at all, shall be considered as waived, unless it be so fundamental that the court would act upon it without an assignment of error as mentioned in rule 23.”

In a well-considered opinion rendered by Justice Higgins in the case of El Paso Elec. Ry. Co. v. Lee, 157 S. W. 748, the authorities relating to this subject are collated and discussed, and it is unnecessary for us to do more than to refer to what is there said.

It may be conceded that under the authority of Ry. Co. v. Beasley, 155 S. W. 183, it is not necessary to embody in the motion for a new trial the action of the court in giving or refusing charges. The ruling in that case is manifestly based upon a construction of the statute which seems to render such action unnecessary. While that ruling was purely dicta, for the reason that the rule referred to could have no application to the facts of that case, yet it is suggestive of the views of our court of last resort as to the proper construction to be given the rules. Conceding that it is unnecessary to embody in motions for new trial the action of the trial court in giving or refusing charges, and that for that reason it would not be necessary for an assignment complaining of such action to contain a reference to the motion, we still think the assignments here should be ignored, for the reason that they disregard other provisions of the rules equally as important. Different assignments containing different propositions of law are in several instances grouped, and the entire group is followed by a single statement, and this often so meager that it furnishes no grounds for sustaining the assignments.

We have carefully examined the record, and find no fundamental error of which we are required to take notice in the absence of an assignment. The judgment of the district court is therefore affirmed.