Simmons v. Simmons

BLAIR, J.

This is an appeal from an adverse Judgment to appellant on his petition for a divorce. The record in this case contains only one bill of exception, upon which appellant seeks a reversal of this ease. This bill alleges error on the part of the trial court in sustaining certain special exceptions addressed to appellant’s petition. There is nothing in the record, except the bill of exception, to indicate that the court acted upon the special exceptions addressed to the sufficiency of appellant’s petition. The judgment . does not mention such fact. We are therefore compelled to affirm this judgment upon the record; no fundamental error being shown therefrom.

Rule-53 for district and county courts of Texas provides:

“There shall be no bills of exception taken to the judgments of court rendered upon those matters- which at common law constitute the record proper in the case, as the citation, petition, answer, and all supplements and amendments and motions for new trial or in arrest of judgment and final judgments.”

Under this rule and rule 65 concerning the same courts, this court is without authority to review the alleged error of the trial court in sustaining exceptions to pleadings, where, as in this case, the only record of such ruling is shown by a bill of exception. Harris, Rules of the Courts Annotated 1921, pp. 171, 179, and 180; Finklea v. First State Bank of Joaquin (Tex. Civ. App.) 247 S. W. 320 ; Dobson v. Zimmerman, 55 Tex. Civ. App. 394 , 118 S. W. 236 ; Alvord Nat. Bank v. Waples-Platter Gro. Co., 54 Tex. Civ. App. 225 , 118 S. W. 232 ; Ilseng v. Carter (Tex. Civ. App.) 158 S. W. 1163 ; Withers v. Crenshaw (Tex. Civ. App.) 155 S. W. 1189 ; Baker v. Sparks (Tex. Civ. App.) 234 S. W. 1109 ; King-Collie Co. v. Wichita Falls Warehouse Co. (Tex. Civ. App.) 205 S. W. 748 ; Daniel v. Daniel (Tex. Civ. App.) 128 S. W. 469 .

The judgment of the court below is therefore affirmed.

Affirmed.