Davidson v. Patton , 1912 Tex. App. LEXIS 727 ( 1912 )

This cause is now before us on a motion by appellee to strike out appellant's assignments of error brought forward in his brief, based upon the proposition that no motion for a new trial was filed in the court below in which the alleged errors were called to the attention of the trial court.

The record shows that the judgment from which this appeal was prosecuted was rendered in the county court of Potter county, on January 25, 1912, and the transcript fails to show that any motion for a new trial was filed in the court below; the appeal bond having been approved and filed in that court on February 23, 1912.

As we construe rule 24 (142 S.W. xii) for the government of the Courts of Civil Appeals, as amended by our Supreme Court on January 24, 1912, this court should not consider an assignment of error except the error complained of shall have been embodied in a motion for a new trial filed in the trial court, and we take this means of calling attention of the bar to the fact that we so construe said rule, and also that we so construe rule 25 (142 S.W. xii), as amended by the Supreme Court, on January 24, 1912, as to require that the assignment of error itself point out the portion of the motion for a new trial in which the error complained of in the assignment was called to the attention of the trial court.

The record in this case, however, showing that the judgment appealed from was rendered on January 25, 1912, and the appeal therefrom perfected on February 23, 1912, while the rules in this controversy were only amended on January 24, 1912, we think in view of the fact that the amended rules as promulgated did not reach the bar generally until some time after their promulgation, as amended, it would be rather a harsh application of the rule to strike out the assignments of error in this case, as prayed for by appellee, especially in view of the fact that the rules themselves primarily have been adopted for the purpose of relieving the appellate courts from labor and expedite the work therein, and not primarily for the purpose of depriving a litigant of any substantial right he may have had.

Had a reasonable time elapsed after the amendment of the rules before the appeal in this case was prosecuted, we would not hesitate to apply the rules as amended and strike out appellant's brief because of failure to comply therewith; but for the reasons above given we have concluded that the ends of justice would be best subserved by overruling the motion in this case.

The motion will therefore be overruled, and it is so ordered.