On Motion for Rehearing.
PER CURIAM.Appellant contends that we erred in refusing to consider his third point because it was not raised in his motion for a new trial. This point refers to the alleged error of the trial court in decreeing that appellant take nothing by his cross-action.
As pointed out by Justice Funderburk in City of Santa Anna v. Leach, Tex.Civ.App., 173 S.W.2d 193, Art. 1837, Vernon’s Ann.Civ.Stats., was repealed when the new rules were adopted. It was this article that authorized us to consider fundamental error. The only error which the Courts of Civil Appeals are now authorized to consider is assigned error, and where it is necessary to file a motion for a new trial, such error must be based upon an assignment of error contained in such motion for a new trial. City of Santa Anna v. Leach, supra; Lobstein v. Watson, Tex.Civ.App., 186 S.W.2d 999; Quinn v. Wilkerson, Tex.Civ.App., 195 S.W.2d 399; Alpine Tel. Corp. v. McCall, Tex.Civ.App., 195 S.W.2d 587; Texas & P. Ry. v. Smith, Tex.Civ.App., 183 S.W.2d 182, reversed on other grounds by Sup.Ct. 143 Tex. 475, 186 S.W.2d 232; Johnson Aircrafts, Inc. v. Wilborn, Tex.Civ.App., 190 S.W.2d 426; Rule 374, and Rule 418 (b), T. R. C. P.
Appellant’s motion for a rehearing has been carefully considered and is overruled.