FLEMING et al. v. PELLUM, 287 S.W. 492

GREENWOOD, J. The jurisdiction of the Supreme Court is invoked by this application to determine the conflict between the decision in this case that a bill of exceptions or a statement of facts, in so far as it relates to testimony taken on a motion for new trial, comes within the terms of

article 2073 of the Revised Statutes of 1911, now

article 2246, and the contrary decision in Smith v. Texas Power & Light Co. (Tex. Civ. App.) 206 S. W. 119. Because of the conflict in the decisions of the Courts of Civil Appeals as to whether

article 2246, formerly 2073, authorized the perpetuation of testimony on motions for new trial, the Supreme Court granted a writ of error in the case of Stephenson v. Nichols (Tex. Com. App.) 286 S. W. 199. In that case it waá held, in an opinion by the Commission of Appeals, that testimony on motions for new trial could be preserved under the provisions of this article, though not embodied in a bill of exceptions filed during the term, and for that reason alone the Commission of Appeals recommended a certain judgment, which this court caused to be entered. Stephenson v. Nichols (Tex. Com. App.) 286 S. W. 199.

Our jurisdiction is also invoked to determine a conflict between the opinion in this case and the opinions in Reed v. Murphy (Tex. Civ. App.) 276 S. W. 951; Double v. Sawtell (Tex. Civ. App.) 271 S.

W. 646, and other eases, on the question whether a party can have his assignments of error considered which complain of the insufficiency of evidence to support a judgment, where he challenged the sufficiency of the evidence by proper assignments, on motion for new trial, and duly excepted to the judgment against him, but made no specific complaint of findings of fact, which the court filed after his motion for new trial was overruled. There is no conflict between the opin-r ion in this case and the opinion in Reed v. Murphy or Double v.

Sawtell, for the reason that it does not appear that a motion for new trial was filed in either of the last-named cases containing specific assignments challenging the sufficiency of the facts tp support the judgment, which assignments were urged in the Oourt of Civil Appeals, as is the case here. And, in Temple Hill Development Oo. v. Lindholm (Tex. Com. App.) 281 S.

W. 321, which is later than any of the other alleged conflicting decisions, this court remanded the case to the Court of Civil Appeals, with directions to consider assignments challenging the sufficiency of the facts to support a judgment, when the party appealing had attacked the judgment as without proper support in the evidence, on motion. for new trial, but had filed no assignments containing specific attacks on the findings of fact- which were afterwards filed. The holding in the opinion of the Commission of Appeals, under which the ca'se of Temple Hill Development Co. v.

Lindholm was remanded, was expressly approved by the Supreme Court, and was followed by the Court of Civil Appeals in this case. Thus it appears that the Supreme Court has entered judgments which necessarily determine the questions about which the assigned conflicts have arisen, and the action of the Oourt of Civil Appeals, which we are now asked to review, is in accord with our action.

The Supreme Court will not continue to grant writs of error to settle conflicts in decisions of Courts of Civil Appeals on points it has already necessarily determined, where the Court of Civil Appeals has not failed to follow the Supreme Court. We find no error presented by assignments not specifically discussed. The writ of error is refused. <&wkey;>For other cases see same topic and KEY-NUMBEK in all Key-Numbered Digests and Indexes