On motion for Rehearing. In his brief and again in his motion for rehearing, appellee contends that this court cannot consider actions and rulings of the court below on the admission and exclusion of evidence at the trial, nor any other alleged errors urged by appellants except those pertaining to the action of the court in giving to the jury a peremptory instruction to return a verdict against them, because they did not file and urge a motion for a new trial in the court below and therein assign such errors.
As we stated in the original opinion, a jury was empaneled to try the case but, at the close of the testimony, the court sustained a motion of the appellee for a peremptory instruction. Upon the return of the verdict the court entered judgment in favor of the appellee.
As we understand rules 324 and 374, T.R.C.P., and the decisions of the courts pertaining to them, appellants were not required to file a motion for a new trial nor to file assignments of error other than to assign the errors in points of error in their brief as provided by rule 374. The errors assigned were so included in the brief and we think they were sufficient to comply with the rules. Rule 324 provides that in all jury cases in which judgment is rendered five days or more before adjournment of the court, a motion for new trial shall be filed. It then provides that the object of the rule is to require a motion for new trial as a prerequisite to appeal in all cases unless a peremptory instruction is given. It seems clear, therefore, that, in a case such as this, where a peremptory instruction was given, the appellants were not required to file a motion for a new trial. Such a case is not considered by the rule to be a jury case and, in fact, it is not such a case because the jury is not permitted to pass upon the facts. Its prerogative of doing so is taken from it by the court and the case, to all intents and purposes, is a trial by the court the same as if no jury had been empaneled.
We find nothing in any of the rules which restricts an appellant to an assignment pertaining to the action of the court in giving a peremptory instruction in a case in which such an instruction is given and we know of no case in which they have received such an interpretation. On the *Page 342 other hand, there are numerous cases in which the opposite was held. Bedner v. Federal Underwriters Exchange, Tex. Civ. App. 133 S.W.2d 214; Associated Indemnity Corporation v. Insurors Indemnity Ins. Co., Tex. Civ. App. 153 S.W.2d 533; Woodmen of the World Life Ins. Soc. v. Brown, Tex. Civ. App. 164 S.W.2d 190; DeBusk v. Guffee, Tex. Civ. App.171 S.W.2d 194; Aldridge v. General Mills, Inc., Tex. Civ. App.188 S.W.2d 407.
Some of the cited cases were trials in which the judgments were entered less than five days before the adjournment of the court for the term. Appeals from such judgments are placed in the same category by rule 324 as cases in which peremptory instructions are given and the holdings were that motions for new trials were not necessary. In DeBusk v. Guffee, supra [171 S.W.2d 196], it was said: "In all cases, where no motion for new trial is required, and, therefore, none made, the Rules provide a substitute for assignments of error. Such substitute provision is a part of Rule No. 374, * * *." The part of the rule referred to is that portion which provides for the assignments of error to be presented by points of error in the brief.
The appellee further contends in his motion that we erred in holding that the evidence showed the crop of cotton was planted before he made and closed his contract of purchase of the land on August 5, 1947. F. F. McCormick testified that cotton was growing on the land the next day after appellee closed his transaction to purchase it. The question of whether or not the cotton had been planted before appellee purchased it seems not to have figured in the trial, but we think the testimony of F. F. McCormick is properly interpreted as meaning that, on August 6, 1947, the cotton was then up and in the process of growth. If so, it necessarily follows that it had been planted a substantial length of time prior to July 19, 1947, when appellee entered into the contract of purchase. Ed Allen, the real estate agent who sold the land to appellee, testified that he showed the land to appellee around the middle of July, 1947. He said the wheat had been harvested, but the cotton was there, growing, at that time. Moreover, all the testimony showed that an abundant crop of cotton was gathered during the harvesting season which followed and it is a matter of common knowledge that, in most sections of the state, particularly its western portion, cotton is planted during the months of May and June or early in July at the latest. It is well known also that if it is planted later, especially in the last days of July or in August, it will not have time to grow, develop and produce a normal crop before receiving its death blow by the winter's frosts. It is well established that courts will take judicial knowledge of such matters. Roberts v. Armstrong, Tex.Com.App., 231 S.W. 371; Matagorda Canal Co. v. Markham Irr. Co., Tex. Civ. App. 154 S.W. 1176; McCullough v. Rucker,53 Tex. Civ. App. 89, 115 S.W. 323; Jordan v. Dinwiddie, Tex. Civ. App.205 S.W. 862 (reversed on other grounds).
Appellee challenges our finding that, on the 20th of July, 1947, he was informed by the appellant that appellant was the landlord for the year 1947. A re-examination of the testimony discloses that appellee is correct in this contention. The conversation between the parties in which appellant made that assertion was had the day after appellee paid for the land and received his deed and we withdraw from the original opinion the finding that it was before that date. However, this change in our findings of the facts will not affect our disposition of the case, because, as shown by the original opinion, there was evidence of other conditions which raised issues that should have been submitted to the jury. The motion will, therefore, be overruled. *Page 343