On Motion for Rehearing.
On motion for rehearing appellants complain of the action of this court in holding *852in its original opinion that the sufficiency of the affidavit attached to appellees’ petition could not be questioned for the first time upon this appeal. They cite the case of Thomason v. Berry, Tex.Com.App., 276 S.W. 185, which holds that an unverified plea of non est factum which was not excepted to in the trial court may be attacked for the first time on appeal.
The holding in the case of Thomason v. Berry has, we think, no application to the facts in this case, in that it is undisputed that the petition upon which appellees went to trial was verified by the affidavit of C. H. Crow, one of their attorneys, and the only point raised by appellants in this connection is the fact that this pleading was “not properly sworn to so as to deny the execution and delivery of said mineral deed.”
Rule No. 90 of the Texas Rules of Civil Procedure indicates an intent on the part of the rule makers and the State legislature to simplify sour trial procedure by providing that defects of form or substance in a pleading will be deemed to have been waived where they have not been raised by exception or objection in the trial court. Said Rule No. 90 reads:
“General demurrers shall not be used. Every defect, omission or fault in a pleading either of form or of substance, which is not specifically pointed out by motion or exception in writing and brought to the attention of the Judge of the trial court before the instruction or charge to the jury or, in a non-jury case, before the rendition of judgment, shall be deemed to have been waived by the party seeking reversal on such account; provided that this rule shall not apply as to any party against whom default judgment is rendered.”
In the instant case appellants did not, prior to the rendition of the judgment complained of, by motion, exception, or otherwise, attempt to secure the action of the trial court upon the alleged defect in the affidavit attached to appellees’ pleadings, either as to form or substance. By their failure to do so they clearly waived their right on appeal to question the sufficiency of said affidavit under said Rule No. 90, Texas Rules of Civil Procedure.
It follows that appellants’ motion for rehearing must be in all things overruled.
Overruled.
Motion for rehearing refused.