United Benevolent Ass'n of Texas v. Lawson , 1914 Tex. App. LEXIS 411 ( 1914 )

Appellant issued its benefit certificate insuring the life of Margaret E. Lawson in favor of her husband, James W. Lawson. The parties were afterwards divorced, and on August 21, 1912, Mrs. Lawson died. This is a suit by her children to recover of the insurer the amount of the certificate.

The first assignment is that the verdict is contrary to the law; the second is that the verdict and judgment are not supported by the evidence. They are submitted as propositions. Under the former practice, assignments complaining of the insufficiency of the evidence or that the judgment was contrary to the law were required to particularize and point out in what respect the evidence was insufficient or the judgment contrary to the law. Possibly this rule as to the sufficiency of such an assignment has been changed by Acts of 1913, Reg. Session, p. 276. But it does not alter Rule 30 of the Courts of Civil Appeal (142 S.W. xiii), which requires that each point under each assignment shall be stated as a proposition unless the assignment itself sufficiently discloses the same. Assignments of such general nature as those indicated do not disclose the point, and in such case the points in the assignment must be presented by appropriate subjoined propositions. Since the assignments themselves do not disclose the point, they cannot be treated as propositions, and for failure to support same by appropriate propositions, they are not entitled to consideration and will not be considered.

Plaintiffs originally made James W. Lawson a party defendant and thereafter entered a dismissal as to him. He was a proper but not an indispensable or necessary party. Plaintiffs had a right to dismiss as to James W. Lawson, if they saw fit to do so. Such dismissal did not in any wise affect appellant's right, by cross-action against him, to have had him retained as a party and the conflicting claims of the parties, if any, adjudicated. By proper and timely action appellant could have preserved this right. If it did not do so, it was its own fault. The third assignment, which complains of plaintiff's dismissal as to James W. Lawson, is therefore overruled.

The fourth assignment complains of the overruling of a plea of privilege. The order overruling the same notes an exception thereto, but there is no bill of exception disclosing the facts upon which the court acted, and in the absence thereof the matter cannot be reviewed.

The fifth assignment is submitted as a proposition. As such it is insufficient because it does not disclose the point or reason why it is contended the court erred in the action to which the assignment relates. For this reason it will not be considered.

The sixth assignment complains of the action of the court in overruling a plea setting up the pendency of a suit in Tarrant county based upon the same certificate upon which the present suit is based. Our attention is not called to any action of the court upon such plea, nor of any exception in relation thereto, and our examination of the transcript does not disclose any. In this condition of the record the assignment of necessity must be overruled.

The petition is not subject to a general demurrer as is contended under the seventh assignment. Hatch v. Hatch,35 Tex. Civ. App. 373, 80 S.W. 411; Cheeves v. Anders, 87 Tex. 287,28 S.W. 274, 47 Am. St. Rep. 107; Schonfield v. Turner, 75 Tex. 324,12 S.W. 626, 7 L.R.A. 189. Lawson and Bransford were not indispensable parties, for which reason the eighth assignment is overruled.

The ninth and tenth assignments are not supported by statements as the rules require and are not considered.

The eleventh assignment is submitted as a proposition. As such it is multifarious. Neither is it supported by such statement as the rules require. It is not considered.

Affirmed.