# Roper v. Winner > Court of Appeals of Texas · October 17, 1951 · 244 S.W.2d 355 URL: https://www.frixlaw.com/law-library/cases/9667064 ## Case - **Full name:** ROPER Et Al. v. WINNER Et Al. - **Court:** Court of Appeals of Texas - **Decided:** October 17, 1951 - **Citations:** 244 S.W.2d 355; 1951 Tex. App. LEXIS 1793 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Pope - **Cited by:** 5 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9667064 ## Opinion text On Motion for Rehearing. Appellants, by their motion for rehearing, cite several authorities to this Court for the proposition that special exceptions, though not urged upon the trial court, may be passed upon by the Court of Civil Appeals in a temporary injunction matter. Rule 90 expressly states that every defect, omission or fault in pleading, either of form or of substance, which is not specifically pointed out by motion or exception in writing and brought to the attention of the judge in the trial court before rendition of judgment in a non-jury case shall be deemed to have been waived by the party seeking reversal on such account. Rule 2 makes the rules of procedure applicable “in all actions of a civil nature, with such exceptions as may be hereinafter stated.” Temporary injunctions are not among those so stated, and we know no reason why we should return to the rule of decision stated in cases decided long prior to the adoption of Rule 90. The Court of Civil Appeals is not the forum for original presentation of special exceptions. Head v. Commissioners’ Court of Hutchinson County, Tex.Civ.App., 14 S.W.2d 86 . Rule 90 simplifies the older practice and calls for a full opportunity by the trial court to avoid error, and we do not think the matter of the sufficiency of pleadings should be presented for the first time in the appellate court. Bednarz v. State, 142 Tex. 138 , 176 S.W.2d 562 ; Strickland Transp. Co. v. Atkins, Tex.Civ.App., 223 S.W.2d 675 ; Thompson v. Haney, Tex.Civ.App., 191 S.W.2d 491 ; Tew v Griffith, Tex.Civ.App., 187 S.W.2d 408 ; Litterst v. Edmons, Tex.Civ.App., 176 S.W.2d 343 ; Texas Osage Co-op. Royalty Pool v. Kemper, Tex.Civ.App., 170 S.W.2d 849 . Appellants further urge that they could properly try the cause upon the bill and answer without the necessity of bringing forward the statement of facts. This is a correct statement of the law, but when appellants elect to proceed in that manner, they carry all the additional burdens of presumption favoring the sound discretion of the trial court based on sufficient evidence. Beene v. Bryant, Tex.Civ.App., 201 S.W.2d 268 ; Horwitz v. Finkelstein, Tex.Civ.App., 189 S.W.2d 895 . As stated in Cocke v. Naumann, Tex.Civ.App., 188 S.W.2d 781 , 782: “The appeal is without a statement of facts; hence we must assume, except as against the record in this appeal and of prior litigations, of which we take notice, that the judgment of the court below is supported by pleadings and evidence, and that, in the exercise of the court’s equitable powers, ‘the ends of justice’ justified the appointment of the re *359 ceiver and the injunction.” That was a case of an appeal from an order granting a temporary injunction. Obj ection is made to the court’s statement that no notice was given appellees relating to the defects in the building, that no opportunity to correct building defects was afforded, and that when inquiry was made, the information was refused. We have examined again the limited record before us. We find that the sworn petition alleged that defendants “refuse to inform them in what manner the same is unsafe and therefore plaintiffs are unable to repair the same if-in truth and in fact it is unsafe.” The unchallenged statement of appellees’ brief states that the sign placed on the place of business read: “The Nite Club has been closed by orders of Commissioner Roper due to the fact that the roof of the building was unsafe and therefore constituted a nuisance.” It then states, also unchallenged : “Immediately thereafter, appellees contacted the appellants and inquired as to what was wrong or unsafe about the roof as the building was a new building, and the appellants refused to answer.” The plaintiffs’ sworn petition alleges that their patrons were intimidated and searched without warrants or information as to why they were searched. Appellees’ brief states that there was no probable cause for such conduct, and the statement is unchallenged. In Sarris v. Christie, Tex.Civ.App., 217 S.W.2d 99, 101 , cited in the former opinion, it was stated that: “* * * thus, in absence of a statement of facts on this appeal, the required statement in briefs, Rule 419, .Vernon’s Texas Rules of Civil Procedure, as to the facts upon which the judgment appealed from was based, are adopted in lieu of statement of facts.” Contrary to the point made by appellants in their motion for rehearing, our opinion in no way enjoins the Building Official from performing his duties nor the police officers from law enforcement. No part of the opinion is subject to that construction. The opinion in no way passed upon the validity of the Building Code. The opinion very clearly states, we think, that the provisions of the Code are to be followed. The motion for rehearing is overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9667064. Public record. Not legal advice.