Viking Refrigerators v. Fischl

^* Writ of error dismissed for want of jurisdiction November 16, 1927. There are no assignments of error in the appellant's brief, and consequently the purported propositions of law advanced have no basis upon which to rest. Rule 28 for the Courts of Civil Appeals is:

"There will be no assignments of error allowed in the appellate court where none have been filed in the lower court, unless by consent of parties."

This rule has in no respect been complied with, but it is mandatory. For authority, see Harris Rules of the Courts, annotated, p. 75, rule 28, supra, and the citations thereunder.

Where there are no assignments of error filed in the lower court and none brought up in the record, no errors will be considered but such as are fundamental or apparent upon the face of the record. Unless error appears in one of these ways, this court has no power to review and revise the action of the trial court. The record in this case has been carefully scrutinized to ascertain if any error appears upon its face, but, finding none, it becomes the duty of this court to affirm the judgment of the trial court. W. T. Waggoner Estate v. Sigler Oil Co. (Tex.Com.App.) 284 S.W. 921.

We will state, however, that we have examined the record in this case, and we believe that the testimony sufficiently establishes the fact that appellant was a foreign corporation, doing and transacting business in this state without a permit so to do. In such case it had no right to use the Texas court as a forum in which to enforce the obligations arising out of such transactions and the trial court correctly dismissed appellant's cause of action. R. S. arts. 1529, 1530, and 1536; Pierce Oil Corporation v. Weinert, 106 Tex. 435, 167 S.W. 808; Blair v. City of Houston (Tex.Civ.App.) 252 S.W. 883; Continental Oil Cotton Co. v. E. Van Winkle Gin Machine Works, 62 Tex. Civ. App. 422, 131 S.W. 415: North American Service Co. v. A. T. Vick Co. (Tex.Com.App.)243 S.W. 549.

For the reason first above assigned, the judgment of the trial court is hereby affirmed.