Byrne v. Texas Lumber Loan Co. , 198 S.W. 600 ( 1917 )

The assignments are predicated upon the action of the trial court in peremptorily charging the jury to find in favor of defendant in error against plaintiffs in error, who were the defendants in that court. As it does not appear from anything in the record we are authorized to consider that plaintiffs in error presented to said court the objection they urge to the charge, before same was read to the jury, they are in the attitude of having waived the objection and are not entitled to have their assignments considered here. Article 1971, Vernon's Statutes; Railway Co. v. Wadsack, 166 S.W. 42; Railway Co. v. Brown, 168 S.W. 867; Heath v. Huffhines, 168 S.W. 974; Railway Co. v. Crutchfield, 165 S.W. 551; Johnson v. Hoover, 165 S.W. 900; Case Cutlery Co. v. Folsom, 170 S.W. 1066; Williams v. Phelps, 171 S.W. 100; Railway Co. v. Chumbley, 169 S.W. 1107; Railway Co. v. Lewis, 176 S.W. 68. The bill in the record showing that plaintiffs in error objected to the charge was not filed until long after the time in which to file it allowed them by the court's order had expired, and for that reason cannot be considered. Canal v. Quinn,160 S.W. 151; Criswell v. Robbins, 152 S.W. 210; Rishworth v. Moss,191 S.W. 843. But had it been filed in time to entitle it to consideration, we would have to hold it to be insufficient because it fails to show that the objection was presented to the court before he read the charge to the jury. Railway Co. v. Sharpe, 167 S.W. 814; Fuller v. Commission Co., 174 S.W. 931; Railway Co. v. Fogleman,. 172 S.W. 558.

The contention made, that the error (if it was one) of the trial court in peremptorily charging the jury to find for defendant in error was a fundamental one entitling plaintiffs in error to have the action of that court reviewed whether they objected to it or not, is overruled. This court and other Courts of Civil Appeals have repeatedly, and we think correctly, held to the contrary of the contention. Railway Co. v. Wilson, 176 S.W. 619; Railway Co. v. O'Bannon, 178 S.W. 731; McCall v. Roemer, 186 S.W. 409; Thorne v. Dashiell, 189 S.W. 986; Pearce v. Lodge,190 S.W. 1156; Carr v. Bank, 189 S.W. 988; Strong v. Harwell, 185 S.W. 676; Ry. Co. v. Wheat, 173 S.W. 974; Gestean v. Bishop, 180 S.W. 302. The right of a litigant to appeal from a judgment against him and his right to a review by an appellate court of proceedings resulting in the judgment are statutory ones. The litigant is not in a position to demand such a review until he makes it appear in the way required by the lawmaking power that he has complied with conditions to its exercise prescribed by that power. One of those conditions, as is shown by article 1971, Vernon's Statutes, cited above, is that the litigant shall present to the trial court his objections to the charge before it is read to the jury. The statute contains no language evidencing an intention on the part of the Legislature that the requirement shall not apply if the charge is a peremptory one to find in favor of the litigant's adversary, and, keeping the object of the Legislature in view, we see no reason why the statute should be held to be inapplicable to such a charge.

The judgment is affirmed.