# Treme v. Thomas > Court of Appeals of Texas · February 12, 1942 · 161 S.W.2d 124 URL: https://www.frixlaw.com/law-library/cases/9831774 ## Case - **Full name:** TREME Et Al. v. THOMAS - **Court:** Court of Appeals of Texas - **Decided:** February 12, 1942 - **Citations:** 161 S.W.2d 124 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Walker - **Cited by:** 9 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/9831774 ## Opinion text On Rehearing. Appellants assign error against our construction of their brief that they had “brought forward no assignment against the intermingling of the evidence” on the issue of their right to a hearing in limine -of appellee’s right to prosecute this suit, and of the issue of mental capacity. Their proposition is: “Appellant is -frankly at a loss to understand how the court could fail to read the assignments of error Nos. 16 to 35 inclusive, appearing at pp. 147 to 154 inclusive of the transcript; comi-plaining of the intermingling of evidence in twelve separate instances of testimony by the first twelve witnessed bn plaintiff’s' supposed evidence in limine. Examinatiofi of appellant Fullen’s ’original brief will' show that these assignments of error were listed as germane to the First point with transcript references at page 3 of such brief and were discussed with 'reference to some o;f’the.particular witnesses at pages ,17 and 18 ’ of the, brief. The court will, see that the trial court even specifically recognized and granted a general objection, order overruling same, and exception to all, of such intermingling to avoid 'the necessity of continued re-presentation thereof which should be recognized by this appellate court as fully -preserving the point.” Wé give appellants’ -first point referred to in this proposition: “The court erred in refusing to accord defendants the ' privilege of- separate trial in limine of the issue of interest and qualification of plaintiff.” Appellants make the statement that their point One is germane to twenty-eight assignments of error, identified by number and by reference to certain pages in the transcript. • Appellants’ point One does not present error against the intermingling of the evidence on .the two issues. The. filing date on their brief shows, as they insist, that it was filed “after the effectiveness of the. Texas Rules, of. Civil Procedure wherein it is provided by Rule .418(b) that assignments of error need not be .copied in the-brief and may be cited by reference only. We likewise' assume that, the court recognizes Rule 374 providing that the motion for new trial shall constitute the assignments of , error on appeal.” But the new rules do .not relieve the appellant of the burden of briefing his assignments; to have advantage o-f his assignments of error, the appellant must brief them. The points upon which the appeal is predicated, within- rule 418(b),.must be “germane to one. or more assignments of error”; to be reviewed, the assignment of error must be advanced in support of a point of error, and must be germane to the point of error. Appellants’ first point was not germane to any assignment against the intermingling of the evidence on the issue of “interest” and “mental capacity.” Appellants' ask us “to state” our reason • “for destroying the properly raised assignments of error,” referring to its assignments against the intermingling of the testimony in limine. The reason is simple; appellants made no point germane *132 to these assignments of error; the assignments were not brought forward; not having been brought forward by germane points, they were not briefed, and therefore, under briefing rules, they were waived. Rule 418(b) expressly provides: “Assignments of error need not be copied in the brief, if they otherwise appear in the record, and may be cited by reference only.” But this rule does not give the appellant the right to a review of assignments not brought forward in support of germane points of error. Appellants also make the point “that no single portion of a right to trial in limine was granted” by the trial court. The statement in our original opinion denies that contention. These proceedings support our conclusion that “the court required appellee to offer evidence of his interest in the estate.” In this connection, we say, except as reflected by this statement, we find no order in the record requiring appellee to offer first his evidence on the issue of his interest. Appellants insist that Alexander v. State, which we cite in our original opinion in support of our conclusion overruling their assignments on the right of trial in limine, was overruled by Newlin v. Smith, 136 Tex. 260 , 150 S.W.2d 233 . Alexander v. State is reported in 115 S.W.2d 1122 ; if Newlin v. Smith overruled Alexander v. State, it would have been easy for the Supreme Court to say so. The point is also made that Alexander v. State is in conflict with Abrams v. Ross’ Estate, Tex. Com. App., 250 S.W. 1019 , and Newton v. Newton, 61 Tex. 511 . The Supreme Court refused a writ of error in Alexander v. State, as against all its prior holdings. The conflict, if it exists, must be resolved in favor of the last expression of the law by the Supreme Court, but we find no conflict. But for the holding of our Supreme Court in Cubley v. Barbee, and Jones v. Guy, cited in our original opinion, we would concur with appellants in their propositions of law, stating appellee’s rights on the issue of adoption. Our personal view of the law on this issue was clearly stated by us in Boudreaux v. Texas & N. O. R. R. Co., Tex.Civ.App., 78 S.W. 641 . But our construction of Cubley v. Barbee in that case was affirmatively denied by our Supreme Court in Jones v. Guy. This court is not a court of last resort. To the best of our ability we have applied to the case at bar the doctrine of Jones v. Guy. Appellants also advance the following proposition: “The court has admitted that no effort at statutory adoption has been made, which was the sole basis of decision in Cubley v. Barbee. The court has manufactured a hybrid relation containing neither unconditional promise nor the elements of estoppel, whose appearance, un-repudiated by the Supreme Court, on the face of the reports of this State will rise like an evil ghost to haunt every domestic relations lawyer with the intangible and vague character thereof from now until such time as the courts of this State, overburdened with pseudo-adoptions, resort to the rule upon which the Missouri courts have retreated in holding that the claimants must prove their cases beyond a reasonable doubt. We say frankly that the general acceptance of a ‘beyond the reasonable doubt’ test by all other states permitting parole proof of adoptions is a freakish creation in the civil law, but it is no more ridiculous than the continued extension of a policy violative of legislative enactment which is inevitably calculated to flood our courts with claims of adoption in every instance where humanitarian instincts may lead individuals to extend succor and shelter to those unfortunate children deprived of natural parenthood. What a penalty this court seeks to impose on charity.” Our Supreme Court had before it, in writing Cubley v. Barbee and Jones v. Guy, the Missouri cases, and the cases from the other states, which, appellants say, accept the “beyond a reasonable doubt test.” We do not find in the holdings of our Supreme Court a scintilla of a suggestion that ap-pellee rested under this burden; however, the “beyond a reasonable doubt test” has no application to this case, if we are correct in our construction of the evidence that ap-pellee sustained, as a matter of law, his claim of adoption. Of course, our conclusion of law on this point rests on our construction of the law as announced in Jones v. Guy. We quote the following additional proposition from appellants’ motion for rehearing: “We would respectfully suggest to the court that it is time for some of our appellate judges, in the continued loose quotations of an unknown A. L. R. annotator, to inspect the original annotation of In Re Taggert now quoted for the third time in this State in the opinion in this case.” In our opinion, we do not cite the annotation from A. L. R. in support of our conclusion *133 of law; we simply quoted from the opinion of the Commission of Appeals the annotator’s proposition of law, approved as the law of this state by our Supreme Court.- Appellants direct our attention “to the fact of inconsistency of the court’s ruling in two evidence questions of identical nature which the court has in one instance determined one way and then reversed itself in order to hold in both instances in favor of appellee’s position. The court has said that the correspondence between the parties to the original custody agreement was remote for the period from 1918 to 1923, thus sustaining the exclusion of a series of letters between the orphanage and Mr. and Mrs. Thomas. At the same time it has admitted portions of the divorce suit between Thomas and wife in the year 1924, over the same objection of remoteness made by appellants, along with many other valid objections thereto, on which the court has not seen fit to rule. If the court’s declaration that Mark’s status was fixed by the so-called contract on which he was received long prior to 1918 is true, on what theory can it condone the admission of the divorce proceedings in 1924? This is playing fast and loose with principles of evidence which should apply to both parties alike.” The excluded correspondence, and the pleadings excepted to, were written statements by interested parties. We excluded the correspondence on the theory that it was too remote; after a great lapse of time the parties did not have the right to make evidence for themselves by statements contradicting and in repudiation of a status which they had brought about by their own acts. We overruled the exceptions to the pleadings assigned as error on the ground that they were admissions against interest; we know of no rule barring admissions against interest on the ground that they are too remote. From birth to death one must face the consequences of his admissions against interest; it does not destroy their evidentiary weight; this is the general rule of evidence. Appellants contend that the jury’s answer to special issue No. 4, given in the original opinion, that appellee had not suffered detriment by reason of his performance of the duties of a child, entitled them to judgment. No such proposition of law has been announced by our Supreme Court. Where an abandoned child has been taken from an orphan’s home and given a good home, raised in love and tenderly nurtured, as was appellee in the case at bar, a jury could not find that he had suffered detriment by reason of the performance of his duties to those who had him in their keeping. At appellants’ request, we find that their plea in abatement for separate trial in limine was filed prior to the answer to the merits in the county court. The transcript contains the order of the trial court, made on the 21st day of April, 1941, at the commencement of the trial, overruling and denying without qualification appellants’ motion for a separate trial. Since in our original opinion we find that “on the hearing in limine certain evidence was received on the ‘mental capacity of the deceased,’ ” it would serve no useful purpose to give the names of these witnesses, and appellants not having briefed their exceptions to the intermingling of the evidence on the issues of interest and mental capacity, it would serve no useful purpose to set out the testimony of the witnesses on these issues, we sustain appellants’ assignments — appellee concurring — that: (1) The lower court erred in taxing costs against the executors; our order is that the executors be relieved of all costs, and that the costs incurred by them be taxed against the estate; (2) the lower court erred in ordering execution to issue out of the district court for the enforcement of its judgment against the executors; our order is that the judgment of the district court be certified to the county court for the due observance of the county court in the administration of the estate of George R. Thomas, deceased; (3) since the executors were the only necessary parties to appellee’s contest, the judgment of the lower court on the issue of costs is reformed further to the extent that the other appellants are taxed only with the costs incurred by them in their personal relation to the contest. The original opinion has been corrected to show that George R. Thomas died on the 16th day of July, 1938. Except to the extent discussed, 'appellants’ request for additional conclusions of fact and law is overruled. The motion for rehearing is granted to the extent of taxing against the estate the costs incurred by the executors in defending the probate of the will, and in directing that the judgment of the district court be certified to the probate court for observation, and in all other respects denied. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9831774. Public record. Not legal advice.