Swafford v. Boyles , 437 S.W.2d 306 ( 1969 )

437 S.W.2d 306 (1969)

Ralph SWAFFORD, Appellant,
v.
Bobby J. BOYLES, Appellee.

No. 5992.

Court of Civil Appeals of Texas, El Paso.

January 22, 1969. Rehearing Denied February 12, 1969.

Rey & Rey, El Paso, for appellant.

Pearson & Speer, El Paso, for appellee.

OPINION

PRESLAR, Justice.

Appellant, Ralph Swafford, brings this appeal from a judgment rendered against him as the defendant in the trial court. Trial was to a jury, and following the entry of judgment based on the jury's findings in response to special issues appellant filed a motion for new trial which he supplanted with an amended motion for new trial. This appeal is from the court's order overruling his amended motion for new trial. We are unable to consider the assignments of error, as they were not set forth in the amended motion for new trial and none are germane to the single assignment of error in the amended motion for new trial.

Under the provisions of Rule 324, Texas Rules of Civil Procedure, the filing of a motion for new trial was a prerequisite for appeal in this case, and Rule 374, T.R.C.P., provides:

"The motion for new trial, when required to be filed under these rules, shall constitute the assignments of error on appeal or writ of error. A ground of error not distinctly set forth in the motion for new trial, in cases where a motion for new trial is required shall be considered as waived. * * *"

None of the errors assigned in this court were brought to the attention of the trial court in appellant's amended motion for new trial and must be considered as waived and not preserved for appellate review. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960); Cain v. Zurich Insurance Company, 426 S.W.2d 575 (Civ. App.1968, n. w. h.).

We have examined the record for fundamental error and finding none, the judgment of the trial court is affirmed.