Walker v. Haley ( 1915 )

WALTHALU, J.

This is an action in trespass to try title to about 30 acres of land in what is known as the L. Haley block of land in Brewster county. The suit originally was filed by appellee against appellant Walker. Pending the litigation, and with knowledge of the suit and the claims of appellee and Walker asserted 'therein, appellant Bird bought from Walker. . Appellants’ answer consisted of a general demurrer and plea of not guilty. The defense asserted under said plea was estoppel. The case was tried to a jury, and, at' the conclusion of the evidence, the court instructed a verdict for appellee.

Appellants presented no objection to the ■ charge of the court and took no bill of exceptions thereto. The jury returned a verdict for appellee, upon which verdict the court entered judgment for appellee. In due time appellant filed a motion for a new trial, the grounds theréfor, briefed and filed in this court, being four in number and all complaining of the peremptory instruction given. Appellee objects to a consideration by this court of the assignments of error, because of the failure of appellants to except to the court’s charge. , Article 1971, as amended by chapter 59, General Laws of the Thirty-Third Legislature of 1913, provides that all objections to the charge shall, in every instance, be presented to the court before the charge is read to the jury, and that all objections not so made and presented shall be considered as waived. And article 2061, in the same chapter, of said General Laws, further provides that the ruling of the trial court in the giving, refusing, or qualifying of instructions to the jury shall be regarded as approved, unless excepted to as provided. In the absence of an exception to the charge, this court must consider all objections to the charge as waived. King v. Gray, 175 S. W. 763, and the cases there referred to. The assignments presenting error to the court’s charge cannot be considered, and the case is affirmed.

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