Payne v. Lucas

ON MOTION FOR REHEARING

On motion for rehearing, appellant argues that this court is without jurisdiction to consider appellees’ cross-point because *608appellee failed to except to the trial court’s judgment, to give notice of appeal and to perfect an independent appeal to this court.

An appellee has the right to cross-assign errors without perfecting an independent appeal provided that he has properly apprised the trial court of his complaint or objection to the judgment. Rule 420, Texas Rules of Civil Procedure; Dallas Electric Supply Co. v. Branum Co., 143 Tex. 366, 185 S.W.2d 427 (1945); West Texas Utilities Co. v. Irvin, 161 Tex. 5, 336 S.W.2d 609 (1960).

Appellees filed motion for judgment non obstante veredicto in the trial court asking that all the jury findings be disregarded and in which motion they presented the same arguments which they have brought forward in their cross-point. The judgment recites that this motion was heard in open court and denied. We are of the opinion that the complaints presented in this motion were properly preserved for appellate consideration. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960). Appellant made no attempt to limit the scope of his appeal under Rule 353, T.R.C.P., and it was our duty to consider and pass upon appellees’ cross-point. Brown v. Cox, 459 S.W.2d 471 (Tex.Civ.App.—Houston [14th] 1970, no writ).

The basic matter for determination by the trial court upon appellees’ motion for judgment non obstante veredicto, and by this court on appellees’ cross-point, was whether the statute in question imposed individual liability upon appellees as a matter of law. We are of the opinion that this question was sufficiently raised by appellees’ cross-point. Rule 422, T.R.C.P.

We have considered all of the matters set forth in appellant’s motion for rehearing and in its motion to strike appellees’ cross-point and such motions are denied.