
    CAPPS v. JOHNSON.
    (No. 393.)
    (Court of Civil Appeals of Texas. El Paso
    Feb. 11, 1915.
    Rehearing Denied March 4, 1915.)
    Appeal and Error <§^499 — Assignments op Error — Instructions — Statutory Provisions.
    Assignments of errors to instructions and refusal of instructions, in the absence of bill of exceptions showing exceptions, in compliance with Acts 33d Leg. c. 59, cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. <§=> 499.]
    Appeal from Beeves County Court; Ben Palmer, Special Judge.
    Action by B. F. Capps against F. W. Johnson. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Clay Cooke, of Pecos, for appellant. Buck & Starley, of Pecos, for appellee.
   HIGGINS, J.

Capps sued Johnson to recover a balance of $450 alleged to be due for drilling a well. Judgment was rendered in Johnson’s favor. This is the second appeal of this case; former opinion appearing in 160 S. W. 1097.

Certain assignments complain of the court’s general charge and the refusal of a special instruction. There is no bill of exception in the record showing compliance .with chapter 59, Act of 1913, p. 113, for which reason the assignments are overruled. Railway Co. v. Wadsack, 166 S. W. 42; Insurance Co. v. Rhoderick, 164 S. W. 1067; Heath v. Huffhines, 168 S. W. 974. Objection, upon trial, was made to certain testimony of Johnson, and its admission is here assigned as error.

The evidence probably falls within and was admissible under the rule laid down in MeKelvey on Evidence (India Paper Edition) p. 220, § 132. In any event, its admission is not regarded as reversible error. Court of Civil Appeals rule 62a (149 S. W. x).

Affirmed. 
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