Devlin v. Heid Bros., Inc.

HIGGINS, J.

The only question presented in appellants’ brief relates to the court’s action in admitting certain evidence over objection. The alleged error was duly assigned in the lower court, but the assignment is not carried forward in the appellants’ brief. As a purported assignment of error there appears in the brief the bill of exception taken to the admission of the evidence. Such bill is, of course, not an assignment of error.

The Commission of Appeals has twice recently held the Court of Civil Appeals cannot consider an error, unless it is fundamental or raised by assignment of error presented in the brief. Greenwall v. Ligon, 14 S.W.(2d) 829; Clonts v. Johnson, 116 Tex. 489, 294 S. W. 844. This rule of practice is imperative, and this court is not at liberty to disregard it. Bank v. Campbell (Tex. Civ. App.) 18 S.W.(2d) 732; Read v. Bergfeld (Tex. Civ. App.) 17 S.W.(2d) 167; Patton v. Mitchell (Tex. Civ. App.) 13 S.W.(2d) 146; Bank v. McReynolds (Tex. Civ. App.) 1 S.W.(2d) 322.

It is not the practice of this court to decline consideration of questions presented simply because the rules of briefing have not been strictly observed. Our position in that respect has been several times stated. But we are not at liberty to disregard imperative rules of practice (Read v. Glidden Stores [Tex. Civ. App.] 293 S. W. 243), and under the ruling of the Commission of Appeals in the cases cited we have no discretion in the present instance.

No fundamental error appearing, the judgment must be affirmed. It is so ordered.