Modern of Pr&198torians v. Sherban , 286 S.W. 623 ( 1926 )

This suit was brought by appellee, Mrs. Sherban, against the Modern Order of Prætorians, hereinafter for convenience called the "Order," to recover the sum of $3,000 upon a certificate of life insurance issued by the Order to Frank B. Sherban, deceased husband of appellee, Mrs. Sherban. The cause came on for trial before a jury. At the close of the evidence, the court instructed the jury to return its verdict for the defendant. Such verdict was returned, and judgment accordingly rendered and entered of record. In due time the plaintiff filed her motion for a new trial, which was, upon hearing, granted. The defendant Order excepted to the order granting the motion, gave notice of appeal from such order, and perfected its appeal to this court.

No assignments were filed by appellant in the trial court, nor are there any assignments incorporated in the transcript of the proceeding brought to this court. It is well settled that, where no assignments are filed in the trial court and none appear in the transcript on appeal, the appellate court is without authority to consider the appeal, except in such cases where fundamental error appears on the face of the record. Articles 1844 and 2281, Revised Civil Statutes of 1925; American Legion of Honor v. Rowell, 78 Tex. 677, 15 S.W. 217; Peacock v. Moore (Tex.Civ.App.) 125 S.W. 943; Bass v. Murray Co. et al. (Tex.Civ.App.) 213 S.W. 673; Garcia v. Hernandez (Tex.Civ.App.)282 S.W. 899.

There is in this case no fundamental error apparent on the face of the record. For the reasons pointed out, we are without authority to consider the assignments of error appearing only in appellant's brief. There being no assignment which we may consider, it becomes our duty to affirm the judgment; and it is so ordered.

Affirmed.