Longley Reeves v. Miller , 1921 Tex. App. LEXIS 506 ( 1921 )

Notwithstanding they relate to distinct and different matters, the first and second assignments of error are grouped in appellants' brief, and only one proposition is submitted under them. Such grouping is a violation of the rules, and therefore the assignments will not be considered. Palm v. Theumann, 201 S.W. 421.

The finding of the jury that the cotton which appellee Yancy Miller turned over to appellants in 1918 and 1919 was worth $2,538 is attacked as without support in the testimony. We have not thought it necessary to determine whether the contention should be sustained or not, because if it should be sustained the judgment should not therefore be reversed; for the jury also found, and the finding is in no way attacked, that said appellee was not indebted to appellants in any sum. It must be assumed In the absence of an attack on it that the fnding was warranted by testimony. Smith v. Hessey, 63 Tex. Civ. App. 478, 134 S.W. 256; Burnett v. Bank, 191 S.W. 172. If it was, the judgment is not erroneous.

The judgment is affirmed.

On Appellants' Motion for Rehearing. For reasons stated in the motion, appellants insist it was not a violation of the rules to group and present the first and second assignments as they did in their brief, and therefore that it was error to refuse to consider said assignments. Agreeing that the grouping was not such a violation of the rules as should operate to deprive appellants of a right to have the contention presented by he proposition under the assignments determined, we have considered same, and have concluded it should be overruled.

Appellants also insist that the fact that they did not attack the finding that Yancy Miller was not indebted to them in any sum vas not a reason why the assignment attacking, as without the support of testimony, the fnding that the cotton which Yancy Miller turned over to them in 1918 and 1919 was worth $2,538 should not be considered. The two findings, they say, were based on identically the same testimony. Therefore, they argue, a determination that one of them was not supported by testimony in effect would be a determination that the other also was without the support of testimony. But we do not think so. There was no testimony whatever showing that appellees owed appellants anything on the open account sued on. The amount of the note, including interest and attorney's fees, was less than $200. So it is obvious the testimony might not have shown the cotton to be worth $2,538 and Yet have shown it to be worth enough to satisfy the amount due on the note. But, while the view of this matter expressed in the opinion affirming the judgment is believed to be correct, it may be stated that a majority of the court (the writer not agreeing) were and are of opinion the finding attacked had sufficient support in the testimony. Therefore, had appellants' contention been considered, it would not have been sustained.

The motion is overruled.