The opinion
On Motion for Rehearing.
Counsel for appellant has filed its motion for rehearing, and therein complains of that portion of the original opinion wherein it is said:
“After having devoted 222 pages of his brief of 229 pages to a discussion of all and each of these (80 or more assignments) he has on page 223 stated that there is in fact only three assignments which present anything more than minor or immaterial error.”
It is insisted that this statement is incorrect, and it is asked that same be corrected so as to show just what in fact was said on page 223 of the brief.
On page 220 of the brief it is said:
“There were other errors which, however, do not in our view, require any extended argument, because, in our view, the case must inevitably be reversed: First, because the facts do not show liability on the part of Frank Andrews, receiver; second, the liability, if any, is not shown to have been fixed upon the company; and, third, because of the fact that J. H. Pile, one of the jurors, was not a competent and qualified juror in this ease.”
Reference was then made to certain proceedings of the trial court, such as the exclusion of certain evidence with reference to the earning capacity of the injured boy, Ira Broughton, the medical bill of an attending physician, etc. Then on page 223 it is said:
“These several errors are all minor errors and not decisive of the cause, but, believing that this case will necessarily be reversed, we respectfully urge the court to properly instruct on these points.”
It is apparent that the word “immaterial”, used in that portion of the opinion quoted is not found in the statement on page 223 of the brief, and appellant’s counsel is justified in the contention that he has not admitted that all of his assignments except the three mentioned were immaterial. We can account for the use of the objectionable word only upon the theory that the writer of the opinion was so strongly impressed with the idea that most of the assignments were frivolous and without any material merit that he inadvertently made use of the word “immaterial.” Rule 35 for the Courts of Civil Appeals ( 142 S. W. x ) reads as follows:
“When the assignments of error are numerous, counsel should present propositions on those which are most important in the determination of the case, waiving those that cannot control the result of the decision in this court — amongst which may be called those involving questions of fact, wherein the evidence is so preponderating or so conflicting as that the court, under *671 well-established rules of decision, would not set aside the verdict of the jury or judgment of the court upon them.”
It was not the purpose of the writer to make an unjust criticism of the brief of appellant, but in view of what we consider a tacit admission on the part of the writer of the brief that he had violated the rule above quoted, and in view of the fact that the time of this court is too often consumed by being required to wade through much frivolous and immaterial matter presented in briefs filed in this court, we thought it not out of place to admonish litigants that the rules of this court should be observed, to the end that it might more speedily dispose of the business before it.
It is also insisted in the motion for rehearing that this court erred in stating that none of the assignments 39 to 43, inclusive, are submitted as a proposition within itself, nor is there under any, or all of them as a group, such proposition.' In so far as we stated that none of the assignments were submitted as a proposition, we find we erred. We overlooked the fact that at the conclusion of these assignments the following words appear : “The foregoing is submitted as a proposition.” We do not think, however, any one of the assignments within itself constitutes a proposition, and the mere statement that it is presented as such does not make it a proposition. We were correct in stating that the assignments as a group were not followed by any proposition. However, if we were in error in all the particulars pointed out in the motion, it was harmless error, as we did pass upon the complaint sought to be raised by each of the assignments.
Haying made the corrections as above indicated, the motion is overruled.