The parties hereto on the 28th of June, 1911, entered into a written contract whereby the appellants bound themselves to convey by warranty deed to appellee 12,000 acres of land in Matagorda county, Tex., in consideration of the payment by him to them on the 1st of December, 1911, of $62,000 cash and the execution of his five vendor’s lien notes of same date, each for the sum of $26,000, payable on the 1st days of December, 1912, 1913, 1914, 1915, and 1916, respectively, bearing interest and providing for attorney’s fees. Appellee likewise executed to appellants his note for $12,000, payable December 1,- 1911, secured by deed of trust on seven sections of land in Crosby county, Tex., which note, as evidenced by its recitals, was given by him as consideration for said contract, and the depositing of said deed in escrow, and the making of survey, preparation of abstracts, and other expenses incurred and to be incurred by appellants; said contract providing that all of said papers were to be deposited in escrow with the Bay City Bank & Trust Company, to be delivered by it to the respective parties thereto upon certain conditions therein set forth, not necessary to be here stated.
It is claimed by appellee that the agents of appellant fraudulently represented said land to be good farming land; that only about 2,000 or 3,000 acres thereof would overflow during excessive Gulf storms, whereas only about 1,000 acres thereof were suitable for farming, and the larger part thereof was subject to overflow, by reason of which said land was of far less value than he agreed to pay therefor; and this suit was brought by him on the 12th of September, 1911, in the district court of Crosby county, Tex., against appellants, seeking to cancel, on the ground of fraud, said written contract, as well as each of said notes and the deed of trust on said Crosby county lands.
Appellants answered by special exceptions, general and special denials. On the 6th of December thereafter appellants instituted suit against appellee in the district court of Matagorda county to enforce the collection of said $12,000 note and to foreclose said deed of trust given to secure same. Ap-pellee answered setting -up the fraud as above referred to, and by cross-action praying for cancellation of said note and deed of trust. By agreement of all the parties, the suits in Crosby and Matagorda counties were consolidated and transferred to the district court of Travis county, where the same was tried before a jury, resulting in a verdict and judgment May 4, 1912, in favor of ap-pellee, canceling said contract, as well as all of said notes and the deed of trust, and denying appellants any recovery in their suit, from which judgment this appeal is prosecuted.
Appellants* brief contains 132 pages. There are 50 assignments of error, covering 30 pages of the transcript, 32 of which are copied in appellants’ brief and insisted upon as grounds for reversal. The motion for new trial is voluminous, covering 20 pages of the transcript, with 49 separate and distinct paragraphs, and was filed in the trial court May 25, 1912; the assignments of error being filed August 31, 1912.
Appellee, by his counsel at the hearing, insisted that appellants’ brief should not be *368considered by ns for tbe reason that it did not conform to rules 24 and 25 for the government of this court, as amended by the Supreme Court January 24, 1912. See 142 S. W. vii. The substance of rule 24 is that no question shall be considered on appeal that was not presented in the court below on motion for new trial, and that the assignment of error must distinctly specify the grounds relied upon. Rule 25, among other things, in setting forth what constitutes a distinct specification of error, requires the assignment to refer to that portion of the motion for new trial in which the error is complained of.
It has recently been held by us in the case of Tinsley v. Bottom, in an opinion by Mr. Chief Justice Key, handed down March 19, 1913, and not yet published, that a failure to conform to these rules will be sufficient ground for disregarding an assignment of error, and this irrespective of whether or not objection is made thereto by the opposite party. It is true in that case that the rules were not enforced, chiefly on the ground that the same, when the assignments of errors were filed, had not been officially published, and for the further reason that the motion for new trial complained only of the action of the court below in one particular, which was the only reason assigned for reversal. In the instant case the trial occurred in the latter part of May, 1912, and the assignments of error were not filed until the 31st ■of August thereafter, seven months after the ■adoption of said rules, and at least four months after 142 Southwestern Reporter ■containing same reached the hands of the profession; and the brief, as we have seen, presents many assignments of error. So that no such reasons exist here as obtained in that case for excusing a failure to conform to said rules. See, also, St. L. S. W. Ry. Co. of Texas v. Ledbetter, 153 S. W. 647, where it was held, upon objection, that a failure to comply with these rules constituted a waiver of the assignments and necessitated an affirmance of the case.
We have carefully examined the brief of counsel and each of the assignments copied therein and find no reference to the motion for new trial in the lower court nor to any paragraph of said motion; the same being wholly ignored. It appears at once how important the observance of these rules is for the orderly dispatch of business in this court. Without such reference in the assignment to that portion of the motion for new trial in which the error is complained of, it would be necessary, in the proper consideration of this case, for the court to review the entire motion (which we are not expected or called upon to do) in order to ascertain whether ■or not the question complained of was properly brought to the attention of the trial court, without which it could not be regarded as sufficient ground up,on which to predicate the assignment; but the error should be considered as waived under rule 24, unless so fundamental that the court would act upon it without an assignment. But where, as here, the opposite side is insisting that the assignments should be disregarded on account of failure to comply therewith, it becomes our duty to disregard the said assignments.
No fundamental error appearing upon the record, the judgment of the trial court is affirmed.
Affirmed.