Hume v. Carpenter , 188 S.W. 707 ( 1916 )

On Appellant's Motion for Rehearing. It is strongly urged on the part of appellant, in an able and elaborate motion for rehearing, that we erred in falling to reverse and render judgment for him, on the ground that appellees are not entitled to have the case reversed and remanded for trial on the issue of the diligence exercised by the county attorney, in order to ascertain the ownership of the lots in controversy before the institution of the tax suits, for the following reasons: First, because the court in its charge to the jury eliminated from their consideration all issues other than that of estoppel, telling them that intervener owned the record title to the lots in controversy, and withdrawing from them all issues except those of estoppel and improvements in good faith, which charge was not excepted to by appellees; and, second, because appellees waived their right to have the issue of diligence of the county attorney in this respect submitted to the jury, for the reason that they failed to except to the refusal of the court to give their special charges submitting such issue. The court instructed the jury that the evidence in the case showed that the intervener had the record title to the lots in controversy, stating that the only issues submitted for their consideration were those of estoppel and improvements in good faith. This charge was not excepted to by appellees, but they excepted to the charge of the court on account of its failure to submit the issue as to the diligence of the county attorney in ascertaining the ownership of the lots before bringing the tax suits, and requested two special charges submitting this issue to the jury, the refusal of which, however, was not excepted to by them.

Such being the state of the record, we must, under the law, hold that appellees have approved the action of the court, both in instructing the jury as to the record title's being in appellant, and in eliminating all issues other than those of estoppel and improvements in good faith, as well as in refusing to give their special charges on the issue of diligence exercised on the part of the county attorney to ascertain the ownership of the lots in controversy before instituting the tax suits in question. See Acts 1913, p. 113; article 2061, vol. 2, Vernon's Sayles' Rev. Civ.Stats. See, also, Floegge v. Meyer, 172 S.W. 194; Railway Co. v. Bartek, 177 S.W. 139; Railway Co. v. Alcorn, 178 S.W. 833; Steele v. Dover, 170 S.W. 813; Railway Co. v. Barnes, 168 S.W. 991; Elser v. Putnam, 171 S.W. 1052; Railway Co. v. Wadsack, 166 S.W. 45; I. G. N. Ry. Co. v. Bland, 181 S.W. 504.

That act of the Legislature, we think, applies as well to appellees as to appellants, and our original opinion holding to the contrary was error, and is now withdrawn. See Insurance Co. v. Finegold, 183 S.W. 836; Railway Co. v. West, 174 S.W. 293. Article 2061, supra, provides that:

"The ruling of the court in the giving, refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to as provided for in the foregoing articles."

Appellees having failed to except to the court's charge in the respect mentioned, and to the refusal to give their special charges, as above indicated, must, we think, be held to have acquiesced in such rulings of the trial court, and are bound thereby. And even had they properly excepted, as required by law, still, by their failure to file any cross-assignments of error, they are not now in a position to complain of such rulings. See rule 101 (159 S.W. xi) for the government of district courts; Meyers v. Maverick, 28 S.W. 717; Tarrant County v. Rogers,104 Tex. 227, 135 S.W. 110, 136 S.W. 255; article 1639, Vernon's Sayles' Rev. Civ.Stats. Under the new practice act it became necessary for appellees, in order to present this question here, not only to except to the charge and the refusal to give their special charges, but also to file their cross-assignments of error.

In addition to what has just been stated, we find that appellees in their brief, on page 75, made the following admission (to which our attention has been called by appellant in his motion for rehearing, and which we inadvertently overlooked in the preparation of our original opinion):

"Appellees have never contended in this case that they or their grantors had the legal title to the lots because of the title acquired by the suit for delinquent taxes; but appellees have contended that they did have title to the lots because appellant and the Central Texas Improvement Company were estopped to claim title to the lots in question because of the statements of Atkinson to Street."

If, therefore, the issue of estoppel was improperly submitted, as we have held, then, under such admission, it is clear that appellant would have the legal title to the lots in controversy, and judgment should be rendered for him therefor.

For all of which reasons we think we are justified in reversing and rendering judgment in this case for appellant; and, as the facts have been fully developed, and the jury having found the value of the lots in controversy, as well as that of the improvements thereon, judgment is now here rendered for appellant for said lots, subject however to all the conditions imposed as required by chapter 2, title 128, Rev. Stats. of 1911, and it is so ordered.

Motion granted. Reversed and rendered.