An inspection of the record in this case shows, that no assignment of errors has been filed. The case should be dismissed for the failure to comply with the plain provision of paragraph 940 of the Revised Statutes of 1887, which requires appellant to file with the clerk of the court below his assignment of errors. The effect of a failure to file any assignment of errors is to waive all errors not apparent upon the record, and which do not go to the foundation of the action. Roy v. Bremond, 22 Tex. 626; Burns v. Wiley, 35 Tex. 20; Railroad Co. v. Scanlan, 44 Tex. 649. In the absence of an assignment, the court may either affirm the judgment of the court below, or dismiss the appeal. Dyer v. Dement, 37 Tex. 431. The objection having been made by appellee at the hearing of the case, this may be taken as a motion to dismiss the appeal. Chevallier v. Whitaker, 8 Tex. 204.
Numerous other omissions to comply with the statutory provision regulating appeals are disclosed by the record. There is no statement of facts, nor anything purporting to be in the nature of a statement of facts. There is nothing but a minute entry of the clerk showing that the motion for a new trial was overruled, and no bill of exceptions was preserved to the ruling, if any there was. A bill of" exceptions was prepared to a ruling of the court made during the trial, but was not settled until ninety days after the conclusion of the trial; but whether it was presented within ten days after the trial or filed during the term is not disclosed by the record. The appeal is dismissed.
Wright, C. J., and Kibbey, J., concurring.