Shary v. Helmick

On Motion for Rehearing.

Appellees, in their motion for a rehearing, contend that as appellants did not object and except to the submission of issue-No. 6 to the jury, on the ground that it was not supported by the pleadings and the evidence, they should not now be heard to raise this matter after the jury have-decided the issue against them.

We do not agree with this contention. It has been definitely held by the Supreme Court, speaking through the Commission of Appeals, that it is fundamental error of the trial court to submit an issue to the jury which has not been plead. Dominguez v. Garcia…