Stephens v. Miller , 1918 Tex. App. LEXIS 387 ( 1918 )

Stephens brought this suit against Miller upon the latter's promissory note given to cover the purchase price of perfumes, etc., bought by Miller from the Donald-Richards Company, to whose order the note was made payable. Defendant pleaded a failure of consideration, and fraud practiced in the procurement of the note. Stephens claimed to be a bona fide purchaser of the note, for value, before its maturity. Upon trial before a jury, verdict was returned and judgment rendered for defendant.

The first and third assignments complain of the court's charge. We find in the record some written objections to the charge, but there is nothing to show that these objections were presented to the court before the charge was read to the jury, as required by chapter 59, Acts 1913. Railway Co. v. Dickey, 187 S.W. 184; Commonwealth v. Bryant, 185 S.W. 979. Furthermore, the written objections filed in the lower court are not the same as those presented here. These assignments are therefore overruled.

The second assignment complains of the refusal of a special instruction. The record fails to show that this charge was requested in the manner prescribed by the act above mentioned. In the absence of such showing, we cannot review the action of the trial court in refusing same. Shipley v. Railway Co., 199 S.W. 661; Hawks v. Longbotham, 188 S.W. 734; Floegge v. Meyer, 172 S.W. 194; Railway Co. v. Jones, 175 S.W. 488.

On October 2, 1916, plaintiff filed in the county court a supplemental petition which contained some special exceptions directed against defendant's answer filed in the justice court. The overruling of these exceptions is made the basis of an assignment. The answer against which these exceptions were directed does not appear in the transcript, and we therefore cannot tell whether the exceptions were well taken. All of the written pleadings of defendant shown by the transcript appear to have been filed in the county court direct, and subsequent to October 2d.

Error is assigned to the overruling of a motion to strike out certain evidence. We can find no bill of exception to the action of the court in overruling this motion. The only thing to be found is some so-called bills of exception which simply detail the alleged reasons why the court erred in admitting the evidence, and state that plaintiff excepted. They are wholly insufficient as a basis for the consideration of this assignment.

The remaining assignment questions the sufficiency of the law and the evidence to support the verdict and judgment. Neither the assignment or supporting propositions undertake to show the insufficiency. They are not entitled to consideration, but it seems to us that there is no merit anyway in the assignment, so it is overruled.

Affirmed.