concurring.
I am in accord with the judgment rendered in this case, but I desire to make it clear that in my opinion the rule which permits a Court of Civil Appeals to reverse a judgment for unassigned error must be given a much more strict and narrow interpretation than was permissible prior to the adoption of the present rules.
Prior to the adoption of the present rules Article 1837 provided that the trial in the Court of Civil Appeals should be “upon an error in law either assigned or apparent upon the face of the record.” Under that statute reversal would occur for any error of procedure committed during the trial if the error was reflected by the record and went to the foundation *205of the case, even though it was unassigned. 3 Tex. Jur. 815-822. Such an error, when apparent upon the face of the record, was sometimes referred to as “fundamental error.” But, as pointed out in Justice Brewster’s opinion, Article 1837, which permitted the reversal upon unassigned errors apparent upon the face of the record, was repealed and Rule 374 now provides that all grounds of error not properly assigned are waived. There is no statute or rule which permits the Supreme Court to consider errors not properly assigned, and it has long been the rule tht this Court, because of the absence of such statute or rule, will not reverse a case for an unassigned error. Scalfi & Co. v. State, 96 Texas 559, 74 S. W. 754; Link v. City of Houston, 94 Texas 378, 60 S. W. 664; Schaff v. Mason, 111 Texas 388, 235 S. W. 520; Holland v. Nimitz, 111 Texas 419, 239 S. W. 185; Stephenson v. Miller-Link Lumber Co. (Com-App.), 277 S. W. 1039. Applying the same principle of law to the Court of Civil Appeals, if seems reasonable to hold that since Article 1837 has been repealed and Rule 374 declares that all unassigned ererors are waived, no error based upon a ruling of the trial court during the trial of the case would authorize a reversal of the judgment of the lower court unless the error was assigned. See Roberson v. Hughes (Com. App.), 231 S. W. 734.
Moreover, under the old statute an insufficiency in the pleadings, or insufficiency in the evidence where it could be detected without an extended examination of the statement of facts, constituted such error apparent upon the face of the record as could be raised in the Court of Civil Appeals without an assignment complaining thereof. 3 Tex. Jur. 820-827. Under Rule 90, now in force, except in cases of default, all defects in pleadings of either form or substance are waived unless complained of in the lower court, and under Rule 67 the court, with either the express or implied consent of the parties, may try an issue and enter a valid judgment thereon without pleadings to support it. Bednarz v. State, 142 Texas 138, 176 S. W. (2d) 562. Rules 370 and 375 permit the taking up of a transcript with only a part of the proceedings therein, and Rule 377 permits the filing of an abbreviated statement of facts. Consequently, a mere negative showing, — that is, that the record fails to contain sufficient pleadings or evidence to support the judgment, would not necessarily reflect error.
From the above it would seen necessarily to follow that in so far as the rights of the litigants are concerned they are not *206entitled to have the court consider any error not assigned by them. It is my opinion that the Court of Civil Appeals is authorized to reverse a judgment of the trial court upon an unassigned error only when it involves a matter of public interest and when the record affirmatively and, conclusively shows that the appellee was not entitled to recover, or where the record affirmatively shows that the court rendering the judgment was without jurisdiction over the subject matter.
This suit involves the right to a public office. This is a matter not belonging exclusively to the litigants. It is a matter of public interest which transcends the rights of the parties. The agreed statement of facts affirmatively and conclusively shows that the appellee was not entitled to recover the office sued for by him, and as a consequence the Court of Civil Appeals was authorized to consider this error, even though it was unassigned. Texas & Pacific Coal Co. v. Lawson, 89 Texas 894, 34 S. W. 919. I therefore concur.
Opinion delivered November 12, 1948.