Read v. Glidden Stores Co. , 293 S.W. 243 ( 1927 )

J. V. Lincoln owned lots 1 to 7, both inclusive, in block 1, Kessler Highlands addition in Dallas. He built a house upon each lot, buying material therefor from appellees Glidden Stores Company and Truscon Laboratories, who filed statutory materialmen's liens. Thereafter the lots were conveyed to appellant, Read, who filed seven separate suits against appellees and others in trespass to try title. Each suit was for a different lot. Appellees filed cross-actions seeking foreclosure of their liens. The validity of the liens was the question at issue. The cases were consolidated and tried as one without a jury. Judgment was rendered as follows: That Read take nothing; in favor of the Glidden Stores Company against Lincoln for the amount of its debt, with interest; in favor of the Truscon Laboratories against Lincoln for the amount of its debt with interest. The appellees also obtained judgment establishing and foreclosing their asserted liens against the lots. The liens were not established and foreclosed against all of the lots for the full amounts of appellees' debts, but in different amounts against each lot. The lien in favor of the Glidden Stores Company was established as follows: Against lot 1 for $80.83; against lot 2 for $138.96; against lot 3 for $68.81; against lot 4 for $56.28; against lot 5 for $192.07; against lot 6 for $135.72; against lot 7 for $221.06.

The lien in favor of the Truscon Laboratories was established as follows: For $33.33 against each of lots 1, 2, 3, and 4, and for $64.33 against each of lots 5, 6, and 7.

The lots were ordered sold separately, the proceeds applied to the payment of the amount of the liens established against each lot, and the balance, if any, paid to Read.

Findings and conclusions were not filed by the trial court. No motion for new trial was made, nor were independent assignments filed below.

Appellees object to the consideration of the propositions submitted in appellant's brief because no error was assigned in the court below and no fundamental error apparent here.

The Court of Civil Appeals is without authority to reverse a case upon an error not assigned in the court below, unless it is an error in law apparent upon the face of the record or, as it is commonly called, fundamental error. This rule is imperative, and the Court of Civil Appeals cannot disregard it. It has been twice so held by the Commission of Appeals. Roberson v. Hughes, 231 S.W. 735; Waggoner's Estate v. Sigler, etc., 284 S.W. 921.

It is the practice of this court to consider upon their merits all questions presented in the appellant's brief, if possible so to do. But we are not at liberty to disregard rules which are imperative and which do not permit the exercise of any discretion upon our part. In accordance with our practice we would be glad to consider this appeal upon its merits, but under the authorities cited we are not at liberty so to do unless there is fundamental error presented.

The proposition upon which appellant relies is that the evidence is insufficient to show with the requisite certainty the value of the material used in each separate house so as to support the lien established against each house. To determine this question it would be necessary to carefully examine and scrutinize the statement of facts to ascertain the value of the material used in the construction of the seven different houses and see if it corresponded with the amounts severally established against the different buildings. Such an error cannot be treated as fundamental. Houston Oil Co. v. Kimball, 103 Tex. 94,122 S.W. 533, 124 S.W. 85; Waggoner's Estate v. Sigler, etc. (Tex.Com.App.) 284 S.W. 921; Ford Damon v. Flewellen (Tex.Com.App.) 276 S.W. 903.

No error being assigned in the court below and none appearing of a fundamental nature, the judgment must be affirmed.

Affirmed.