On Motion for Rehearing.
[5] Appellee presents a very vigorous motion for rehearing. We feel satisfied as to the correctness of the legal proposition decided by us in disposing of appellant’s tenth assignment of error. But in overruling the motion for rehearing we wish to.add a few words in answer to the very spirited contention that, in considering appellant’s tenth assignment of error, we violated rule 31 (142 S. W. xiii), which requires, among other things, a brief statement of such proceedings, as contained in the record, as will be necessary and sufficient to explain and support the proposition submitted under the assignment with a reference to the pages of the record. Can it be said that there was no statement whatever under the assignment? There was a statement referring- us to the statement under the preceding assignment, which set forth the charge which had been requested and refused by the court. This reference we thought sufficient to show the proposition appellant was seeking to establish; that is, that, in view of a general objection to the charge because of an omission, the specially requested charge, although insufficient in form, nevertheless was sufficient to call the trial court’s attention to the omission in the general charge complained of. It is true that the statement failed to disclose that the proper objection had been made to the court’s charge, or *788that a bill of exception had been taken to the refusal of the special charge. And it is further true that appellee in his original brief objected to a consideration of assignment No. 10 on this ground, and we doubtless would have been fully authorized to refuse to consider it. Appellee’s objection to the assignment, however, was as follows:
“There is no statement in any of the assignments of error to the effect that bills of exceptions were reserved. See statement following seventh assignment, brief of appellant, pages 36 to 40; eighth assignment, page 40; ninth assignment, page 51; tenth assignment, page 53; eleventh assignment, pages 54 and 55. The. twelfth assignment is not followed by any statement whatever. Brief, page 55. Therefore rule 31 has again been violated.”
It will be noted that the objection to the statement under the tenth assignment is embodied among like objections to a number of other assignments, and in some way, not now recalled, at least some of us overlooked the objections to a consideration of the tenth assignment. It is doubtless true that numerous decisions may be found, perhaps some on the part of this court, in which assignments so failing in statement have been disregarded; but the question now is: Whether having considered and determined the assignment, shall we, because of the failure to note the appellee’s objections and the reason therefor, reverse our ruling, refuse to consider the assignment, and affirm the judgment? We think not. As stated, we entertain no doubt of the correctness of our original conclusion. In the consideration of the assignment, we, as a matter of fact, did refer to the record, and as a matter of fact found that the proper bills of exception had been taken. So that the failure complained of is merely formal. The purpose of the rule evidently is merely to conserve the time of the court and prevent unnecessary labor that may be avoided by statement of the necessary fact with a reference to the page of the transcript where it is exhibited. But it would be extremely technical to say that an announcement made in the disposition of an assignment should be set aside after the court had made the necessary investigation and found that the record in truth contained the facts necessary to show that the party was entitled to have his assignment considered. We are unwilling, at least, to go thus far, and it is accordingly ordered that the motion for rehearing be overruled.