cross-assignment error in Texas

1935App. 206 , 85 S.W. 847 ), it is, we think, a sufficient one to say that appellee is not entitled to have the insistence considered here, because it is not presented by a cross-assignment of error filed in the court below and carried into its brief filed here.

1935Co. v. Vanlandingham, 38 Tex.Civ.App. 206 , 85 S.W. 847 ), it is, we think, a sufficient one to say that appellee is not entitled to have the insistence considered here, because it is not presented by a cross-assignment of error filed in the court below and carried into its brief filed here.

2015Allen Veatch and May Veatch of the judgment, as reformed, was affirmed ( 117 S. W. 430 ).

1965Corralitos Co. v. Mackay, 31 Tex.Civ.App., 316 , 72 S.W. 624 . * * * ” Also, in Jones v. Mitchell, 47 S.W.2d 371 , (Tex.Civ.App.) writ ref., the Dallas Court of Civil Appeals held as follows in finding that the trial court did not err in refusing to allow interest: “Appellee complains that this court, in response to a proper cross-assignment of error, should have allowed interest on the amount found in favor of appellee at the rate of 6 per cent, per annum from January 1, 1927 to the date of the judgment, and reform the judgment of lower court to this extent.

1965Corralitos Co. v. Mackay, 31 Tex.Civ.App., 316 , 72 S.W. 624 . * * * ” Also, in Jones v. Mitchell, 47 S.W.2d 371 , (Tex.Civ.App.) writ ref., the Dallas Court of Civil Appeals held as follows in finding that the trial court did not err in refusing to allow interest: “Appellee complains that this court, in response to a proper cross-assignment of error, should have allowed interest on the amount found in favor of appellee at the rate of 6 per cent, per annum from January 1, 1927 to the date of the judgment, and reform the judgment of lower court to this extent.

1965Corralitos Co. v. Mackay, 31 Tex.Civ.App., 316 , 72 S.W. 624 . * * * ” Also, in Jones v. Mitchell, 47 S.W.2d 371 , (Tex.Civ.App.) writ ref., the Dallas Court of Civil Appeals held as follows in finding that the trial court did not err in refusing to allow interest: “Appellee complains that this court, in response to a proper cross-assignment of error, should have allowed interest on the amount found in favor of appellee at the rate of 6 per cent, per annum from January 1, 1927 to the date of the judgment, and reform the judgment of lower court to this extent.

1962In the case of Grand Fraternity v. Melton, 1909, 102 Tex. 399 , 117 S.W. 788 , a judgment for the plaintiff based upon a similar type of case was reversed and judgment rendered for the company.

1962In the case of Grand Fraternity v. Melton, 1909, 102 Tex. 399 , 117 S.W. 788 , a judgment for the plaintiff based upon a similar type of case was reversed and judgment rendered for the company.

1951We will, however, discuss the following authorities cited by appellee in support of its contention that the cross assignment of error as to interest should he considered: O’Neil v. O’Neil, Tex.Civ.App., Eastland, 77 S.W.2d 554 , writ dism.; Ward v. Scarborough, Tex.Com.App., 236 S.W. 441 ; Dallas Electric Supply Co. v. Branum Ca, 143 Tex. 366 , 185 S.W.2d 427 ; Bowman v. Puckett, 144 Tex. 125 , 188 S.W.2d 571 ; and Maxwell v. Maxwell, Tex.Civ.App., Amarillo, 204 S.W.2d 32, 40 , writ ref. n. r. e. The O’Neil case was decided prior to the adoption of the present Rules of Civil Procedure.

1951We will, however, discuss the following authorities cited by appellee in support of its contention that the cross assignment of error as to interest should he considered: O’Neil v. O’Neil, Tex.Civ.App., Eastland, 77 S.W.2d 554 , writ dism.; Ward v. Scarborough, Tex.Com.App., 236 S.W. 441 ; Dallas Electric Supply Co. v. Branum Ca, 143 Tex. 366 , 185 S.W.2d 427 ; Bowman v. Puckett, 144 Tex. 125 , 188 S.W.2d 571 ; and Maxwell v. Maxwell, Tex.Civ.App., Amarillo, 204 S.W.2d 32, 40 , writ ref. n. r. e. The O’Neil case was decided prior to the adoption of the present Rules of Civil Procedure.

1951We will, however, discuss the following authorities cited by appellee in support of its contention that the cross assignment of error as to interest should he considered: O’Neil v. O’Neil, Tex.Civ.App., Eastland, 77 S.W.2d 554 , writ dism.; Ward v. Scarborough, Tex.Com.App., 236 S.W. 441 ; Dallas Electric Supply Co. v. Branum Ca, 143 Tex. 366 , 185 S.W.2d 427 ; Bowman v. Puckett, 144 Tex. 125 , 188 S.W.2d 571 ; and Maxwell v. Maxwell, Tex.Civ.App., Amarillo, 204 S.W.2d 32, 40 , writ ref. n. r. e. The O’Neil case was decided prior to the adoption of the present Rules of Civil Procedure.

1951The probate court being without jurisdiction to pass on any other questions than those we have mentioned, “the district court had none on appeal, its jurisdiction being limited to such as the probate court could properly have exercised.” Huston v. Cole, 139 Tex. 150 , 162 S.W.2d 404, 406 ; Pullen v. Russ, Tex.Civ.App., 209 S.W.2d 630 , writ ref. n. r. e. In a cross assignment of error the appel-lees declare that the court erred in allowing the appellant, as executor, attorney’s fees in the amount of $5,000, together with .the sum of $777.05 as expenses for defending the suit.

1951We will, however, discuss the following authorities cited by appellee in support of its contention that the cross assignment of error as to interest should he considered: O’Neil v. O’Neil, Tex.Civ.App., Eastland, 77 S.W.2d 554 , writ dism.; Ward v. Scarborough, Tex.Com.App., 236 S.W. 441 ; Dallas Electric Supply Co. v. Branum Ca, 143 Tex. 366 , 185 S.W.2d 427 ; Bowman v. Puckett, 144 Tex. 125 , 188 S.W.2d 571 ; and Maxwell v. Maxwell, Tex.Civ.App., Amarillo, 204 S.W.2d 32, 40 , writ ref. n. r. e. The O’Neil case was decided prior to the adoption of the present Rules of Civil Procedure.

1951We will, however, discuss the following authorities cited by appellee in support of its contention that the cross assignment of error as to interest should he considered: O’Neil v. O’Neil, Tex.Civ.App., Eastland, 77 S.W.2d 554 , writ dism.; Ward v. Scarborough, Tex.Com.App., 236 S.W. 441 ; Dallas Electric Supply Co. v. Branum Ca, 143 Tex. 366 , 185 S.W.2d 427 ; Bowman v. Puckett, 144 Tex. 125 , 188 S.W.2d 571 ; and Maxwell v. Maxwell, Tex.Civ.App., Amarillo, 204 S.W.2d 32, 40 , writ ref. n. r. e. The O’Neil case was decided prior to the adoption of the present Rules of Civil Procedure.

1951We will, however, discuss the following authorities cited by appellee in support of its contention that the cross assignment of error as to interest should he considered: O’Neil v. O’Neil, Tex.Civ.App., Eastland, 77 S.W.2d 554 , writ dism.; Ward v. Scarborough, Tex.Com.App., 236 S.W. 441 ; Dallas Electric Supply Co. v. Branum Ca, 143 Tex. 366 , 185 S.W.2d 427 ; Bowman v. Puckett, 144 Tex. 125 , 188 S.W.2d 571 ; and Maxwell v. Maxwell, Tex.Civ.App., Amarillo, 204 S.W.2d 32, 40 , writ ref. n. r. e. The O’Neil case was decided prior to the adoption of the present Rules of Civil Procedure.

1951We will, however, discuss the following authorities cited by appellee in support of its contention that the cross assignment of error as to interest should he considered: O’Neil v. O’Neil, Tex.Civ.App., Eastland, 77 S.W.2d 554 , writ dism.; Ward v. Scarborough, Tex.Com.App., 236 S.W. 441 ; Dallas Electric Supply Co. v. Branum Ca, 143 Tex. 366 , 185 S.W.2d 427 ; Bowman v. Puckett, 144 Tex. 125 , 188 S.W.2d 571 ; and Maxwell v. Maxwell, Tex.Civ.App., Amarillo, 204 S.W.2d 32, 40 , writ ref. n. r. e. The O’Neil case was decided prior to the adoption of the present Rules of Civil Procedure.

1951The probate court being without jurisdiction to pass on any other questions than those we have mentioned, “the district court had none on appeal, its jurisdiction being limited to such as the probate court could properly have exercised.” Huston v. Cole, 139 Tex. 150 , 162 S.W.2d 404, 406 ; Pullen v. Russ, Tex.Civ.App., 209 S.W.2d 630 , writ ref. n. r. e. In a cross assignment of error the appel-lees declare that the court erred in allowing the appellant, as executor, attorney’s fees in the amount of $5,000, together with .the sum of $777.05 as expenses for defending the suit.

1951The probate court being without jurisdiction to pass on any other questions than those we have mentioned, “the district court had none on appeal, its jurisdiction being limited to such as the probate court could properly have exercised.” Huston v. Cole, 139 Tex. 150 , 162 S.W.2d 404, 406 ; Pullen v. Russ, Tex.Civ.App., 209 S.W.2d 630 , writ ref. n. r. e. In a cross assignment of error the appel-lees declare that the court erred in allowing the appellant, as executor, attorney’s fees in the amount of $5,000, together with .the sum of $777.05 as expenses for defending the suit.

1948Furthermore, it appears that the issue as to these funds was injected into the case by a trial amendment filed by ap-pellee in which she prayed that her claim in the amount of $1,387.50 be “charged against the undivided one-half interest in said community estate inherited by the said Lois Etter Cadwell (appellant) and Lorraine Etter Whittington * * Mrs. Whit-tington was a party and the judgment on this issue being in her favor she became a co-appellee with appellee, and the rule is well settled that “an appellee must perfect an independent appeal before he may cross-assign error as to a co-app

1943For it is well settled that “an appellee must perfect an independent appeal before he may cross-assign error as to a co-appellee, and failure to perfect an appeal constitutes a waiver of the right to have the Court pass upon an error alleged by cross-assignment of error.” 3 Tex.Jur. § 609; Detroit, etc., Co. v. State, 124 Tex. 147 , 76 S.W.2d 492 ; Temple Trust Co. v. Haney, Tex.Civ.App., 103 S.W.2d 1035 , 133 Tex. 414 , 107 S.W.2d 368 ; Sherman v. El Paso Nat.

1943For it is well settled that "an appellee must perfect an independent appeal before he may cross-assign error as to a co-appellee, and failure to perfect an appeal constitutes a waiver of the right to have the Court pass upon an error alleged by cross-assignment of error." 3 Tex.Jur. § 609; Detroit, etc., Co. v. State, 124 Tex. 147 , 76 S.W.2d 492 ; Temple Trust Co. v. Haney, Tex. Civ.

1943Towery v. Plainview Bldg. & Loan Ass’n, Tex.Civ.App., 99 S.W.2d 1039, 1042 , writ refused; Bain v. Smith, Tex.Civ.App., 97 S.W.2d 353, 354 ; Garitty v. Halbert, Tex.Civ.App., 235 S.W. 231 ; Hardwicke v. Trinity Universal Ins.

1943For it is well settled that “an appellee must perfect an independent appeal before he may cross-assign error as to a co-appellee, and failure to perfect an appeal constitutes a waiver of the right to have the Court pass upon an error alleged by cross-assignment of error.” 3 Tex.Jur. § 609; Detroit, etc., Co. v. State, 124 Tex. 147 , 76 S.W.2d 492 ; Temple Trust Co. v. Haney, Tex.Civ.App., 103 S.W.2d 1035 , 133 Tex. 414 , 107 S.W.2d 368 ; Sherman v. El Paso Nat.

1943Towery v. Plainview Bldg. & Loan Ass’n, Tex.Civ.App., 99 S.W.2d 1039, 1042 , writ refused; Bain v. Smith, Tex.Civ.App., 97 S.W.2d 353, 354 ; Garitty v. Halbert, Tex.Civ.App., 235 S.W. 231 ; Hardwicke v. Trinity Universal Ins.

1943For it is well settled that “an appellee must perfect an independent appeal before he may cross-assign error as to a co-appellee, and failure to perfect an appeal constitutes a waiver of the right to have the Court pass upon an error alleged by cross-assignment of error.” 3 Tex.Jur. § 609; Detroit, etc., Co. v. State, 124 Tex. 147 , 76 S.W.2d 492 ; Temple Trust Co. v. Haney, Tex.Civ.App., 103 S.W.2d 1035 , 133 Tex. 414 , 107 S.W.2d 368 ; Sherman v. El Paso Nat.

1943For it is well settled that “an appellee must perfect an independent appeal before he may cross-assign error as to a co-appellee, and failure to perfect an appeal constitutes a waiver of the right to have the Court pass upon an error alleged by cross-assignment of error.” 3 Tex.Jur. § 609; Detroit, etc., Co. v. State, 124 Tex. 147 , 76 S.W.2d 492 ; Temple Trust Co. v. Haney, Tex.Civ.App., 103 S.W.2d 1035 , 133 Tex. 414 , 107 S.W.2d 368 ; Sherman v. El Paso Nat.

1943Towery v. Plainview Bldg. & Loan Ass’n, Tex.Civ.App., 99 S.W.2d 1039, 1042 , writ refused; Bain v. Smith, Tex.Civ.App., 97 S.W.2d 353, 354 ; Garitty v. Halbert, Tex.Civ.App., 235 S.W. 231 ; Hardwicke v. Trinity Universal Ins.

1942This presents the most serious phase of the objection to such assignments being considered, and but for the fact that on careful investigation of the law applicable to such proceedings we have reached the conclusion that cross-assignments of error Nos. 1, 2, 3, 7, and 8 present fundamental error, same would not be considered, and the other cross-assignments, not presenting such error, will not be considered, and to that extent appellants’ objections thereto will be sustained.” In Gloor v. Allen, supra [47 Tex.Civ.App. 519 , 105 S.W. 542 ], the court said: “Appellee has presented in his brief a

1935Co. v. Cates (Tex.Com.App.) 291 S.W. 193 ; Garrison v. Dallas Railway Terminal Co., supra. We think the requirements of an exception and cross-assignment of error are no less mandatory in this case than objection to the submission of an issue and a cross-assignment of error in a jury case.

1935Co. v. Cates (Tex.Com.App.) 291 S.W. 193 ; Garrison v. Dallas Railway & Terminal Co., supra. We think the requirements of an exception and cross-assignment of error are no less mandatory in this case than objection to the submission of an issue and a cross-assignment of error in a jury case.

1935App. 52 , 130 S.W. 739 ; Rodgers v. Farmers' Bank (Tex.Civ.App.) 264 S.W. 491 ; Standard v. Texas Pacific Coal Oil Co. (Tex.Civ.App.) 47 S.W.2d 443 ] the appellate court may, without a cross-assignment of error, consider the state of the evidence to determine if an otherwise reversible error is harmless, then some of the most important purposes of assignments of error fail.

1935If, as held in some cases, at least one by this court, [Gillean v. Witherspoon (Tex.Civ.App.) 121 S.W. 909 ; Smalley v. Paine, 62 Tex.Civ.App1. 52, 130 S.W. 739 ; Rodgers v. Farmers’ Bank (Tex.Civ.App.) 264 S.W. 491 ; Standard v. Texas Pacific Coal & Oil Co. (Tex.Civ.App.) 47 S.W. (2d) 443 ] the appellate court may, without a cross-assignment of error, consider the state of the evidence to determine if an otherwise reversible error is harmless, then some of the most important purposes of assignments of error fail.

1935App. 52 , 130 S.W. 739 ; Rodgers v. Farmers' Bank (Tex.Civ.App.) 264 S.W. 491 ; Standard v. Texas Pacific Coal Oil Co. (Tex.Civ.App.) 47 S.W.2d 443 ] the appellate court may, without a cross-assignment of error, consider the state of the evidence to determine if an otherwise reversible error is harmless, then some of the most important purposes of assignments of error fail.

1935If, as held in some cases, at least one by this court, [Gillean v. Witherspoon (Tex.Civ.App.) 121 S.W. 909 ; Smalley v. Paine, 62 Tex.Civ.App1. 52, 130 S.W. 739 ; Rodgers v. Farmers’ Bank (Tex.Civ.App.) 264 S.W. 491 ; Standard v. Texas Pacific Coal & Oil Co. (Tex.Civ.App.) 47 S.W. (2d) 443 ] the appellate court may, without a cross-assignment of error, consider the state of the evidence to determine if an otherwise reversible error is harmless, then some of the most important purposes of assignments of error fail.

1935App. 52 , 130 S.W. 739 ; Rodgers v. Farmers' Bank (Tex.Civ.App.) 264 S.W. 491 ; Standard v. Texas Pacific Coal Oil Co. (Tex.Civ.App.) 47 S.W.2d 443 ] the appellate court may, without a cross-assignment of error, consider the state of the evidence to determine if an otherwise reversible error is harmless, then some of the most important purposes of assignments of error fail.

1935If, as held in some cases, at least one by this court, [Gillean v. Witherspoon (Tex.Civ.App.) 121 S.W. 909 ; Smalley v. Paine, 62 Tex.Civ.App1. 52, 130 S.W. 739 ; Rodgers v. Farmers’ Bank (Tex.Civ.App.) 264 S.W. 491 ; Standard v. Texas Pacific Coal & Oil Co. (Tex.Civ.App.) 47 S.W. (2d) 443 ] the appellate court may, without a cross-assignment of error, consider the state of the evidence to determine if an otherwise reversible error is harmless, then some of the most important purposes of assignments of error fail.

1935Gladney v. Pate (Tex.Civ.App.) 29 S.W.2d 794 ; Yost v. Wilson (Tex.Civ.App.) 27 S.W.2d 286 ; Western Union Tel.

1935Gladney v. Pate (Tex.Civ.App.) 29 S.W. (2d) 794 ; Yost v. Wilson (Tex.Civ.App.) 27 S.W.(2d) 286 ; Western Union Tel.

1935Gladney v. Pate (Tex.Civ.App.) 29 S.W.2d 794 ; Yost v. Wilson (Tex.Civ.App.) 27 S.W.2d 286 ; Western Union Tel.

1935Gladney v. Pate (Tex.Civ.App.) 29 S.W. (2d) 794 ; Yost v. Wilson (Tex.Civ.App.) 27 S.W.(2d) 286 ; Western Union Tel.

1930It appears from the transcript from the justice’s court, which may be considered in determining the motion to dismiss (Darby v. Davidson, 27 Tex. 432 ; McBurnett v. Lampkin, 45 Tex. Civ.

1930App.) 283 S. W. 638 , with the other authorities cited, fully supports this rule.

1930In Citizens' State Bank v. McMurrey, by this court, cited supra, we said: "While defendant in error has filed no *Page 795 motion to strike the brief, yet without assignments of error the brief presents nothing for review." Appellees have brought forward in their brief a cross-assignment of error which can not be reviewed because not filed in the lower court. 3 Tex.Jur. 875, stated the rule as follows: "It is settled that cross assignments must be filed in the trial court, and that an assignment not so filed may not be considered." Austin v. Bain (Tex.Civ.App.) 283 S.W. 638 , with the other au

1930It appears from the transcript from the justice’s court, which may be considered in determining the motion to dismiss (Darby v. Davidson, 27 Tex. 432 ; McBurnett v. Lampkin, 45 Tex. Civ.