A. D. Blackwell v. W. S. Hunnicutt, 69 Tex. 273

Acker, Judge. The first ground of error assigned relates to that part of the charge of the court which construes the disclaimer filed by appellant. Upon inspection of the record, it clearly appears that the court did not err in construing the disclaimer to apply to all of the Harvey survey, except so much of it as is included in the boundaries given'in the deed from appellee to appellant. It is insisted by appellant that the court erred in charging the jury that the judgment offered in evidence entitled the plaintiff to recover all the land included within the boundaries of the.

Harvey three hundred and seventy acre survey, except the. one hundred and twenty-three acres conveyed by plaintiff to defendant, “because the defendant pleaded facts that happened' after said judgment, that would entitle the defendant to recover if the same were true.” The judgment introduced in evidence was, in effect, a judgment by confession, rendered in a suit between the parties to. this suit, in favor of appellee and against appellant, for the Harvey three hundred and seventy acre survey.

There is no proposition submitted under this assignment, and the statement thereunder does not call our attention to any evidence tending to show that appellee ever disposed of any part of the land except the one hundred and twenty-three acres conveyed to appellant. In the statement under the assignment of error now being considered, appellant informs us what allegations are made in his pleadings, but does, not call our attention to any evidence tending to sustain them. The court is not required to instruct the jury upon the issues made by the pleadings unless there is some evidence offered to support them.

Where such evidence is offered, and the court in its general charge fails to instruct the jury on all of the issues made by the pleadings and the evidence, it is the duty of the party complaining to ask special instructions upon the neglected issues,- and, if instructions bo asked are refused, to call the attention of this court to the particular issue upon which the refused instruction was asked, by proper assignment of error noting the particular instruction refused, and showing the allegations in pleadings, and evidence ' adduced, which authorize the instruction asked.

We can not, therefore, consider the question attempted to be raised by this assignment of error. (Johnson v. Granger, 51 Texas, 42; International & Great Northern Railroad Company v. Underwood, 64 Texas, 468; Supreme Court Rule 31.) The third ground of error assigned is as follows: “The court erred in refusing to give the special instructions asked by defendant.” It has been repeatedly held by this court that such an assignment of error will not be considered. (Blake v. Insurance Company, 67 Texas, 160; Hughes v.

Railway, Id., 595.) The fourth and fifth grounds of error assigned are as follows: “ The court erred in not charging the jury as to defendant’s rights under his pleas and proof of estoppel. “The court erred in not charging the jury as to the law of limitation pleaded by the defendant.” It does not appear that instructions were asked on the questions attempted to be presented by these assignments, nor does it appear from the assignments, propositions or statements under them that any evidence adduced upon the trial tended to sustain either.

Our attention has not been called by appellant’s brief to any error that requires reversal, and finding no fundamental error in the record, we are of opinion that the judgment of the district court should be affirmed. Affirmed. Opinion adopted November 28, 1887.