Dunn v. Lamar Cty. Levee Improvement Dist. , 293 S.W. 284 ( 1927 )

It does not appear from anything in the record sent to this court that appellants filed assignments of error in the lower court, but the transcript contains a motion for a new trial filed by them. However, they did not comply with rule 32 for the government of Courts of Civil Appeals, which required them to include in their brief a verbatim copy of their said motion in lieu of assignments of error. Scaling v. School District (Tex.Civ.App.) 285 S.W. 678; Wigglesworth v. Stock Co. (Tex.Civ.App.) 126 S.W. 1180; Bowers v. Goats (Tex.Civ.App.) 146 S.W. 1013; Fessinger v. Times Co. (Tex.Civ.App.) 154 S.W. 1171. They are not, therefore, entitled to have the contentions in their brief considered here. Texas Midland Ry. Co. v. Herbeck, 60 Tex. 602; Wright v. Maddox (Tex.Civ.App.) 286 S.W. 607; Martin v. Bank (Tex.Civ.App.) 102 S.W. 131; Bristol v. Gas Co. (Tex.Civ.App.) 273 S.W. 746; Double Sawtell (Tex.Civ.App.) 271 S.W. 646; Schaff v. Fancher (Tex.Civ.App.) 215 S.W. 861; Lewis v. Pitts (Tex.Civ.App.) 275 S.W. 473; Paris v. Estes (Tex.Civ.App.)283 S.W. 529; Mansfield v. Mansfield (Tex.Civ.App.) 198 S.W. 169; Turner v. Turner (Tex.Civ.App.) 195 S.W. 326. But we have considered said contentions, and, if we felt called upon to determine same, would overrule them.

Appellant O. N. Dunn, a witness for himself and the other appellants, testified, in effect, that the other appellants verbally authorized him to act for them in making the settlement evidenced by the receipt set out in the statement above. The contention that said other appellants nevertheless were not bound by the act of said O. N. Dunn in making the settlement is on the theory that, quoting from appellant's brief, "the creation of the rights obtained by reason of said receipt was in the nature of an easement in the lands, and thereby came within the provisions of the statute of frauds."

There might be merit in the contention if appellee was claiming an easement in appellant's land and the issue was as to whether it had acquired such an easement or not. 25 R.C.L. 500. But appellee made no such claim. It did not defend against the recovery sought by appellants on the theory that it had acquired such an easement, but on the theory that as a trespasser on the land it agreed with appellants and Smith on the amount of damages they were entitled to demand of it on account of such trespass, and had paid them the amount agreed upon. The statute of frauds had no application to the case, and hence it was not necessary that the consent of appellants to the settlement should be evidenced by writing. Certainly said receipt was admissible as evidence of such agreement and payment as against O. N. Dunn, and as certainly, we think, it was admissible as evidence against the other appellants on the proof made that in making the settlement O. N. Dunn acted for them and by their authority as well as for himself. Having properly admitted the receipt as evidence, we think the trial court correctly construed its effect to be to show that appellants were not entitled to recover as they sought to against appellee.

The judgment is affirmed.