Smock v. Fischel

On Motion for Rehearing.

Appellant contends that we erred in refusing to consider his third point because it was not raised in his motion for a new trial. This point refers to the alleged error of the trial court in decreeing that appellant take nothing by his cross-action.

As pointed out by Justice Funderburk in City of Santa Anna v. Leach, Tex.Civ.App., 173 S.W.2d 193, Art. 1837, Vernon’s Ann.Civ.Stats., was repealed when the new rules were adopted. It was this article that authorized us to consider fundamental error. The only error which the Courts of Civil Appeals are now authorized to…