Clarendon Land Investment Agency Co. v. McClelland Bros.

In this motion for a rehearing the appellees do not ask a reconsideration of our ruling upon the principles of law which govern the merits of the controversy; but they do insist that the record, as it came to us, did not, under the Constitution and laws of the State and the rules of practice of this court, present for our determination the questions determined in the former opinion.

It is contended, in the first place, that because our jurisdiction is limited to questions of law, and because the judgments of the Courts of Civil Appeals are made conclusive upon the facts, we are not at liberty to look beyond the conclusions of fact filed in such a court, in determining a case brought before us upon a writ of error. The statutes provide, that in a cause in which a writ of error lies to the Supreme Court, the Court of Civil Appeals shall file its conclusions of fact and law, and it was doubtless contemplated that these conclusions should embody a full statement of all the facts established upon the trial of the case. Act of April 13, 1892, sec. 31, Laws of 1892, p. 31.

It is also true that the fifth section of the same act provides, among other things, that "the judgment of the Court of Civil Appeals shall be conclusive upon the facts of a case," but the meaning of the provision is clear. To recite the uncontroverted facts of a case demands no act of judgment, in the sense in which that term is used in the statute. What is meant is, that the decision of that tribunal upon questions of fact — that is to say, questions upon which there may be a conflict in the evidence — shall be final, and not the subject of review in this court.

Article 1033 of the Revised Statutes, as amended by the Act of April 13, 1892, provides, that the Supreme Court, upon the hearing of a case brought up by a writ of error, "may require at any time the original transcript to be sent up" (Laws 1892, page 22); and in pursuance of that authority, this court has adopted a rule which directs that the transcript shall be transmitted to this court in every case in which a writ of error shall have been granted. 84 Tex. 696, rule 5. If it was intended that the Supreme Court should decide the case upon the conclusions of law and fact filed in the Court of Civil Appeals, the power conferred by the provision in the statute last cited is nugatory. We think the purpose was to empower this court not to revise the decision of the court of appeals upon any disputed question of fact, but to enable it to decide all issues presented for the determination of this court, in the light of the pleadings and of every fact established either by the undisputed evidence or the conclusions of the appellate court, upon the conflicting evidence.

It is not to be presumed that a Court of Civil Appeals will intentionally avoid in its statement of the case any fact material to its determination. But in the view they take of the law, a fact may appear to them immaterial, which in the opinion of this court may have an important bearing upon the determination of the cause. If there should be a conflict in the testimony as to the question whether a certain thing be black or white, and the Court of Civil Appeals finds that it was white, this court is bound by that finding. But if the undisputed evidence show that it was black, and that court, not being impressed with the materiality of the fact, should inadvertantly state that it was white, it would be an unreasonable rule that would withhold from this court the power to correct the error and decide according to the evidence, in the event it should deem the fact material to a proper disposition of the cause. This is a strong illustration, and one not likely to occur; but errors less palpable, but equally as prejudicial, may occur, and this court should not be bound by them.

In this case the Court of Civil Appeals, in their conclusions of fact, found that the appellant's cattle "broke through appellees' fence;" but as stated in the former opinion, one of the appellees testified in the trial court that the cattle "would crawl through the fence," and the other that "they were small, and just walked through the fence into our pasture." It is clear that there was no actual breaking, and viewed in the light of the undisputed testimony, it is also clear that the court did not intend in its conclusions to convey that idea. The case itself affords a striking illustration of the injustice of the rule for which counsel contend.

There is nothing in the opinion in the case of Meade v. Land Company, 85 Tex. 815, inconsistent with the views here expressed.

In this same connection, it is complained that even if we had the power to look to the testimony, we were in error in concluding that the plaintiff in error's cattle were less in size than other cattle in the neighborhood. But if this deduction be not warranted by the testimony, it is unimportant. They were evidently not fence-breaking cattle. We may say, however, that we do not clearly see how the cattle in question "just walked through" a wire fence sufficient to keep out the ordinary cattle of the country," unless it was by reason of the fact that they were extraordinarily small.

It is contended, in the second place, that the error for which we have held that the judgment should be reversed was not properly assigned in the Court of Civil Appeals, and that therefore we were in error in considering the assignment here. That assignment reads as follows:

"The court erred in the fifth paragraph of his charge to the jury, which is as follows: 'Every entry of one's own cattle upon the lands or premises of another is a trespass, and the owner of such cattle will be liable for any damages sustained by the owner of such premises, if any, provided such lands or premises were at the time of such entry enclosed by a fence sufficient to exclude therefrom such cattle or animals as were accustomed to be used in the country or the range around and about such enclosed premises, and provided further, that such trespass is effected by a forcible entry through such fence or enclosure.' "

It is insisted that the assignment is too general, under the statute and rules and practice of this court. The same question has been presented in another case at this term, and it seems to be one upon which the bar are somewhat at sea. It is important that it should be settled; and with a view to its definite determination, so far as may be practicable, we have examined the decisions of this court from its earliest day. They are very numerous, however, and we can therefore hardly claim that none have escaped our attention.

The ground upon which the assignment is asserted to be insufficient seems to be, that in addition to pointing out the particular ruling which is claimed to be erroneous, it should have given the reason upon which that claim is based. We will refer to some of the cases, in order to illustrate the distinction between those in which assignments apparently general have been held good, and those in which such assignments have been held bad.

In Earle v. Thomas, 14 Tex. 583, an assignment that "the court erred in refusing the charge asked by the defendant" was held good.

In Harper v. Stroud, 41 Tex. 367, it was held, that an assignment that "the court erred in approving the claim" — it being a suit to establish a claim against an estate — was sufficiently specific.

In Norwood v. Cobb, 20 Tex. 588, it was decided, that when the bill of exceptions showed the objections to the evidence, it was not necessary to repeat the objections in the assignment, but that it was sufficient to assign error generally in the admission of such evidence.

In Hillebrant v. Brewer, 5 Tex. 566, that "the court erred in overruling defendant's exceptions to the petition" was held a good assignment. This, like some other of the very early cases, recognizes too liberal a rule.

On the other hand, in Allen v. Stephanes, 18 Tex. 670, Judge Hemphill says: "The second assignment, that the court erred in its charge to the jury, specifies no particular error as a ground of complaint. It is objectionable on this ground, the charge being full and embracing several legal propositions."

In Howard v. Colquhoun, 28 Tex. 134, an assignment that the court erred in refusing defendant's special instructions, there being thirteen of them, was disregarded as being too general.

These decisions are sufficient to indicate the rules of practice recognized by the court at the time the present rules upon the subject of assignments were first adopted; and we see nothing in the new rules, so far as this matter is concerned, to indicate that it was the intention to do more than to declare in unmistakable language and place in established form the rules of practice already announced in the decisions of the court. The new rules were first formulated and adopted December 1, 1877 (47 Tex. 597), and are embodied in the same language in the rules for the government of the Courts of Civil Appeals, adopted by this court at its last term. 84 Tex. 700. They are now numbered and read as follows:

"24. The assignment of errors must distinctly specify the grounds of error relied on; and a ground of error not distinctly specified in reference to that which is shown in the record, or not specified at all, shall be considered as waived, unless it be so fundamental as that the court would act upon it without an assignment of errors, as mentioned in rule 23.

"25. To be a distinct specification of error, it must point out that part of the proceedings contained in the record in which the error is complained of, in a particular manner, so as to identify it, whether it be the rulings of the court upon a motion, or upon a particular part of the pleadings, or upon the admission or rejection of evidence, or upon any other matter relating to the cause or its trial, or the portion of the charge given or refused, or the fact or facts in issue which the evidence was incompetent or insufficient to prove, the insufficiency of the verdict or finding of the jury, if special, and the particular matter in which the judgment is erroneous or illegal, with such reasonable certainty as may be practicable in a succinct and clear statement, considering the matter referred to.

"26. Assignments of error which are expressed only in such general terms, as that the court erred in its rulings upon the pleadings, when there are more than one, or in its charge, when there are a number of charges, or the verdict is contrary to law or to charge of the court, and the like, without referring to and identifying the proceeding, will not be regarded by the court as a compliance with the statute requiring the grounds to be distinctly specified, and will be considered as a waiver of errors, the same as if no assignment of errors had been attempted to be filed."

The language in rule 24, that "the assignment of error must distinctly specify the grounds of error relied on," gives countenance to the contention that the assignment should not only point out with distinctness the particular ruling complained, but that it should also state the reason why that ruling claimed to be erroneous. The ground of error may mean the proposition by which the contention that there is error in the action of the court is intended to be supported. But we are clearly of opinion that the words were not used in that sense. The evident purpose of rules 25 and 26 is to define and illustrate what is meant by rule 24. For example, when rule 25 says that the specification of error must point out "the portion of the charge given or refused," it implies that if such portion be distinctly specified it shall be sufficient. It does not say that the assignment must state the reason by which it is sought to be supported. But to make the meaning more definite rule 26 specifies that certain assignments shall be deemed bad by reason of their generality; and among the examples given is that of an assignment which complains that the court erred "in its charge, when there are a number of charges." This also implies that an assignment which complains of a component part of a general charge, or of the giving or refusal of a special charge, shall be deemed sufficient. Thus rules 25 and 26 explain rule 24, and the two taken together, by inclusion and by exclusion, clearly define its meaning.

We have found one case in which an opinion contrary to our view is expressed. In Pearson v. Flanagan, 52 Tex. 278, the court say: "Each error assigned should contain a distinct ground for the reversal of the judgment, with a specification of the reason why it should be reversed, and should be copied or substantially stated in the briefs." But in that case the question before us was not presented. The assignments which were held bad were, that "the court erred in refusing the defendant a new trial, for the reason given in said motion," and that "the court erred in not giving the several special charges to the jury asked by the defendant." The assignments specified no particular error, and were therefore insufficient. They did not call for the determination of the question whether the reasons for alleging error should be stated or not.

In Earle v. Thomas, supra, the question of the particularity requisite in an assignment was discussed, and, as we think, the true rule laid down. The assignment which was objected to in that case was, that "the court erred in refusing the charge asked by the defendant." The court say: "It is objected on behalf of the appellee, that the assignment of error in this particular is too general. It is, however, sufficiently specific in respect to the charge refused, and that, we think, sufficiently indicates in what respect the charge given was objected to as erroneous. It would have been better if the assignment in reference to the charge given had been more specific. * * * What shall be a sufficiently special assignment of error is not susceptible of precise definition. It should be such as to draw the mind to the apprehension of the particular error relied on. But what shall be sufficient for this process still remains to be determined upon the particular circumstances of each case."

It is to be borne in mind, that the statute and rules which require errors to be assigned were intended primarily for the relief of the appellate courts, and to secure a prompt dispatch of the business that should be brought before them. They should be given a reasonable and practical construction, and not one calculated to embarrass suitors in the appellate tribunals by unnecessary restrictions. It is certain that it was never intended to hedge either the Court of Civil Appeal or the Supreme Court around with technical and arbitrary requirements, so as to cut off the approach of such parties as seek relief in good faith from the consequences of supposed errors committed to their prejudice in the trial courts.

Where an assignment of error is sufficiently specific to enable the court to see that a particular ruling is complained of, it should be held good, although it should fail to state the reason why such ruling is claimed to be erroneous. An assignment may be brief and yet specific, and brevity in such a case is commendable and accords with good practice. The reasons by which allegations of error are sought to be sustained find their proper place in the propositions, statements, and authorities required to be set forth in the brief, under and in support of the respective assignments.

We conclude that the assignment is question is sufficient.

We are also of the opinion that "the court erred in overruling the defendant's general demurrer to plaintiffs' original petition" should be held good; though we are not prepared to say that the demurrer should have been sustained. The petition alleges, that the plaintiffs' land was securely fenced and enclosed, and that the defendant permitted its cattle to break through their enclosure. Under the rule every reasonable intendment must be indulged in favor of the petition — the demurrer being general. Rule 17, 84 Tex. 711. If the fence was secure and the cattle broke through it, it is a reasonable inference that they were peculiarly vicious in that particular, and were fence-breaking animals.

The motion for a rehearing is overruled.

Delivered November 23, 1893.