On Motions for Rehearing.
JACKSON, Justice.Appellants and appellee each in due time filed a motion for rehearing, but neither have presented any additional reasons in support of the contentions urged in the briefs.
The appellee insists that we should consider and sustain its cross-assignment of error, complaining of the refusal of the court to give its requested instruction directing the jury to find a verdict in its behalf.
As disclosed in the original opinion, the suit of appellants was to cancel the deed of trust lien covering both the Central Park property and the Alabama property.
The appellee in its cross-action asserted the validity of the lien evidenced by the deed of trust, and in the alternative, claimed a constitutional lien against the Alabama property.
The court at the conclusion of the evidence peremptorily instructed the jury to find for appellee on its debt, and foreclosed the constitutional lien on the Alabama property and directed the sale thereof as under execution, but decreed a cancellation of the deed of trust held by appellee.
The appellants prosecuted their appeal from the judgment against them, foreclosing the constitutional lien against the Alabama property.
The appellee made no motion for new trial, gave no notice of appeal, filed no appeal bond, and relies for a review of the action of the court in canceling the deed of trust on its cross-assignment of error in the appeal prosecuted by appellants.
In Hunt v. Garrett (Tex.Civ.App.) 275 S.W. 96, 107, the administrator of the estate of G. W. Hunt, deceased, sued W. W. Hunt to recover certain securities of the alleged value of $30,000 belonging to the estate. He also sought in the same action to recover a personal judgment against W. W. Hunt for $3,000, evidenced by his promissory notes.
Upon the conclusion of the testimony, the court peremptorily instructed the jury to find -for the administrator on the securities sued for and to find for appellant on the notes upon which the administrator sought personal judgment.
W. W. Hunt prosecuted an appeal, urging as error the action of the court in directing a verdict against him for the securities involved. Relying on this appeal from this judgment by the appellant, the appellee filed cross-assignments of error, complaining of the action of the court in directing a verdict against him on the notes executed to the estate, and on which he sought a personal judgment.
The court, in refusing to consider these cross-assignments, said: “Appellee has also presented several cross-assignments of error, complaining of the court’s peremptory instruction to find a verdict against the ap-pellee on the notes executed by defendant as alleged in his petition, etc., but we think we cannot consider these cross-assignments. The appellee at the time did not except to the charge so given, nor did he file a mo- i tion for new trial complaining of such ac*1043tion, nor did he give notice of appeal from the judgment against him that was rendered in accordance with the peremptory instruction. It is true rule 101, promulgated for the government of district and county courts, provides that an appellee may file cross-assignments of error, but the application of this rule, we think, is confined to the subject-matter and relevant to the questions involved in the appeal- actually prosecuted.”
In the same case, passed on by the Supreme Court, 283 S.W. 489, 491, it is said: “The plaintiff in error complains also of the failure of the Court of Civil Appeals to consider his cross-assignments of error, directed to that portion of the judgment of the trial court which denies him a recovery on the notes alleged to have been executed by W. W. Hunt. We have carefully considered his contention, and have concluded that the holding of the Court of Civil Appeals relative to such cross-assignments of error is correct, and that that court properly refused to consider such cross-assignments of error for the reasons stated by that court.”
These authorities, we think, are decisive against appellee’s contention that we should have considered its cross-assignments of error.
Both motions are overruled.