While appellants' brief stated, as held by us in original opinion, that no proof was offered by them on trial in the county court, yet it clearly appears from the record that this statement was incorrect and was inadvertently made; such proof having in fact been introduced.
It is also true that while rules 8 and 11 require all motions for certiorari and to amend the transcript, occasioned by irregularities in the manner of bringing a case into court, to be filed within 30 days after the case is filed in this court, still these rules are not to be so arbitrarily construed as to defeat the ends of justice in any case. The record shows that an appeal bond was in fact filed from the county court to the district court, together with the transcript, in due time; and the failure to incorporate these documents in the transcript to this court is not shown to be attributable to the negligence of appellants' counsel. On the contrary, it seems that he prepared the list of papers to be copied by the clerk in the transcript, and this list embraced the bond and transcript on appeal from the county to the district court, and the failure on the *Page 292 part of the clerk to conform to this request was not discovered by said counsel until the motion to dismiss the appeal was filed. This motion should itself have been made, under rule 9 (142 S.W. xi), within 30 days from the time the record was filed in the appellate court, but was not done until about one year had elapsed. Therefore it was impossible for appellants to conform to the requirements of rule 8 (142 S.W. xi). Justice, we think, will be best subserved by allowing the filing of said bond and transcript, copies of which accompany the motion for rehearing, and they will hereafter be regarded as a part of the record to be considered by this court.
For the reasons stated, the motion for rehearing is granted.
On the Merits. This appeal involves the correctness of a judgment sustaining the will of Lou Wyatt, deceased, which was propounded for probate in the county court of Waller county by Walton Pendleton, appellee, the sole executor named therein. Its execution is denied by appellants, and it is likewise assailed on the ground of fraud and undue influence. The case was first tried in the county court, wherein a judgment was obtained by appellee, and on appeal therefrom by appellants to the district court a similar judgment was rendered, from which this appeal is prosecuted.
The first error assigned is the insufficiency of the evidence to sustain the judgment. It is only necessary to say in reference to this assignment that there is evidence supporting the due execution of the will; and, while this fact is controverted by the evidence offered on the part of appellants, yet its solution was a question for the jury, and their verdict, for this reason, will not be disturbed by us.
During the closing argument of R. E. Hannay, Esq., counsel for appellee, as shown by bill, he said: "Gentlemen of the jury: The witness Rachel Richards, who testified by deposition for contestants, did not dare to come here where I could cross-question her, for she was bought for one dollar, for A. G. Lipscomb, one of the counsel for contestants, told me so." This language was promptly objected to by counsel for appellants, on the ground that the same was untrue, and, second, that there was no such testimony before the jury, and the court told Mr. Hannay to confine his argument to the facts as proven. Whereupon he turned to the jury and said: "It is true." To all which language and conduct on his part contestants excepted, and the court did not instruct the jury to disregard this argument. One of the principal issues in the case was as to whether or not the will was in fact ever executed by Lou Wyatt, the deceased, and Rachel Richards was the chief witness sustaining appellant's contention in this respect, to wit, that the will was never executed by Lou Wyatt. There is absolutely no evidence in the record supporting or tending to support the argument of counsel as above set out. We cannot presume that the jury were not influenced thereby, but, on the contrary, must infer that the same probably influenced their verdict. This being true and the court having failed to instruct the jury to disregard it, requires us to set aside the verdict. See Galveston Electric Co. v. Dickey, 56 Tex. Civ. App. 490, 120 S.W. 1134; Dillingham v. Scales, 78 Tex. 205, 14. S.W. 566; Moss v. Slack, 141 S.W. 1063; Cameron v. Cameron, 162 Mo. App. 110, 144 S.W. 171; Western U. Tel. Co. v. Ray, 147 S.W. 1194; Cincinnati, N. O. T. P. Ry. Co. v. Martin,154 Ky. 348, 157 S.W. 710; Shovel Tool Co. v. Moore, 154 Ky. 431,157 S.W. 1121; City of Austin v. Gress, 156 S.W. 535; Campbell v. Prieto, 143 S.W. 668; Willis Bro. v. McNelll, 57 Tex. 465; G., C. S. F. Ry. Co. v. Butcher, 83 Tex. 314, 18 S.W. 583; Texas St. Louis, etc., Ry. Co. v. Jarrell, 60 Tex. 270.
In Dillingham v. Scales, supra, Mr. Justice Henry held that where improper argument had been resorted to, which was calculated to and probably did Influence the verdict of the jury, it was the duty of the court to set aside the verdict.
In the case of City of Austin v. Gress, supra, it was held that statements by plaintiff's counsel in a personal injury case, indicating a belief that an insurance company was the real party in Interest in defending the case, was reversible error, in spite of the action of the court in directing the jury to disregard it.
We cannot consider the point raised by the fifth assignment, for the reasons, first, that the objection to the introduction of the will was too general, failing to point out the particular error relied on, which, however, appears from the statement to have been a failure on the part of appellee to prove that the attesting witnesses to the will were credible and over the age of 14 years. If the assignment, however, had been sufficiently specific to raise the question now sought to be presented, still it could not be considered by us, for the reason that this specific objection was not made to the introduction of the will at the time it was offered in evidence, nor was it even raised in the motion for new trial. District Court Rule 57 (142 S.W. xxi) prescribes that exceptions to the admission of evidence on the trial, where no reason is assigned for objecting to it, shall not be sustained where the evidence is obviously competent and admissible as tending to prove any of the facts put in issue in the pleadings. This rule does not permit dragnet objections which fail to definitely specify tile objection to the evidence offered, and is reasonable in that it affords the trial court an opportunity of considering the exact question presented. Rule 24 (142 S.W. xii), governing this court, requires. *Page 293 that the assignment should distinctly specify the grounds of error relied on, which must have been previously incorporated in the motion for new trial, and an error not so presented must be regarded as waived.
We do not think there is any merit in the remaining assignments, for which reason they are overruled; but, on account of the error above pointed out, the judgment of the trial court is reversed, and the cause remanded.
Reversed and remanded.