
    SANER-WHITEMAN LUMBER CO. v. TEXAS & N. O. RY. CO.
    (No. 683-4589.)
    (Commission of Appeals of Texas, Section B.
    Dec. 15, 1926.)
    1. Appeal and error <®=»I082(2) — Error held to have been properly preserved forming basis of reversal of judgment by Commission of Appeals.
    Plaintiff in error, by excepting to decision, and specifically assigning error on appeal,, and asserting error by special proposition in briefs, and making it ground of motion for rehearing in Court of Civil Appeals, and for writ of error thereto, held to have properly preserved error forming basis of reversal of judgment by Commission of Appeals.
    2. Appeal and error <§=jI082(2) — Case may not be reversed and remanded on proposition and • assignment of error not properly preserved.
    ' It is not within province of Commission of Appeals to go outside of record and reverse and remand case on proposition and assignment of error n.ot properly preserved.
    Error to Court of Civil Appeals of First Supreme Judicial District.
    On motion for rehearing.
    Motion overruled.
    For former opinion, see 288 S. W. 127.
   POWELD, P. J.

We have carefully considered motion for rehearing filed herein by the defendant in error. We think same is without merit, and recommend that it be overruled.

We see no reason to add anything to our original opinion, and ordinarily would not do so. But, on page 4 of the motion, counsel use this language:

“We challenge your, honors to find such a proposition or such assignment of error in the record filed in Court of Civil Appeals, as the proposition and assignment of error upon which writ of error was granted, and upon which this ease was reversed and remanded.”

In view of this challenge, we now submit the record through all the courts upon this point.

At the time the trial court entered its judgment (affirmed later by the Court of Civil Appeals), plaintiff in error excepted thereto, and gave notice of appeal therefrom. The trial had been without a jury. In due season assignments of error were filed by plaintiff in error. The twentieth assignment of error was as follows:

“The court erred in holding that the plaintiff was' unable to take up the steel from the road bed of the Caro Northern Railroad Company.”

The twenty-first assignment of error was as follows:

“The court erred in refusing to hold that the plaintiff, under the law, was unable to take up the rails from the road bed .of the Caro Northern Railroad Company, and in refusing to hold that it was the right and the duty of’the plaintiff to repossess said rails before its cause of action for the taking up thereof or for the value thereof as against this defendant accrued.”

These assignments became the basis of the eleventh proposition in the brief filed by the lumber company in the Court of Civil Appeals. Said proposition reads as follows:

“There is nothing in the Constitution or statutes or the laws of this state to prevent the railroad company from removing its rails now in the tracks of the Caro Northern Railway Company.”

In connection with this last proposition, and on page 53 of its brief in the Court of . Civil Appeals, we find counsel for the lumber company using this language:

“It is submitted that under the law the rails can now be taken up, and, in that event under the prayer of the railroad company, its recovery is limited to a judgment awarding it the title and possession of the rails, and upon proper proof-which was not submitted, the cost of taking up the rails, and the rent thereon.”

In its prayer, at the conclusion of its brief in the Court of Civil Appeals, the lumber company asked that the judgment of the trial court be reversed and final judgment be rendered for it.

The Court of Civil Appeals held that the rails could be removed, but went on any way, and affirmed the judgment for conversion, and gave damages for the value of the fails. Against this judgment of the appellate court, the lumber company filed its motion for rehearing in due season. We quote, in part, from the fortieth and forty-first grounds of said motion, as follows:

“XD. This court erred in affirming the judgment of the trial court, because said judgment has not any basis in the pleadings of appellant.”
“XLI. This court erred in affirming the judgment of the trial court, because both in the original and amended petition the plaintiff based its right of recovery in conversion upon the theory that, the rails having once been placed in the body of the track of a common carrier, they could not be taken up, and that the act oi so placing them there was in itself a conversion, and because the prayer both in the original and trial petition was to the effect that, if the rails could, under the law, be taken up and recovered, then plaintiff prayed for the recovery of the rails and the cost of their recovery, and only in case they could not be so recovered was there any prayer for recovery as for conversion, and, this court having correctly held that they could have been recovered, then the only condition, under which judgment was asked against this appellant has been held not to have existed.”

The motion for rehearing was overruled by the Court of Civil Appeals. In due time application for writ of error was filed. The Supreme Court granted it upon “the second proposition under the second error assigned.’' Judging from the motion, counsel seem to think: this notation .referred to the second assignment of error in the lumber company’s brief in the Court of Civil Appeals. That is not a correct assumption. The notation referred to assignments in the application for the writ. In the latter instrument the second assignment of error reads as follows:

“The Court of Civil Appeals erred in holding that appellee’s petition was sufficient to allege a cause of action for the recovery of the value of the ráils.”

The second proposition thereunder, being the basis of the writ granted, reads as follows:

“Where a party seeks two inconsistent remedies, only one may be granted, and it is incumbent upon the party to elect as between the two, and he is bound by the election. In this case the appellee elected to sue primarily for the title and possession of the raiis, and pleaded and proved a good cause of action to recover the title and possession, and therefore, under the law and under its pleadings, cannot have judgment for the value of the rails.”

It is quite clear to uS, and we hope now to counsel, that the error forming the basis of this reversal has been properly preserved through all the courts. Counsel are quite correct in stating that it is not within our province to go outside the record and reverse and remand a case upon, a prpposition and assignment not properly preserved all along the way.

, It was insisted by the lumber company that we render final judgment in its favor. We thought the equities would be better subserved by not doing so. We stated our reasons for this conclusion in our original opinion. The lumber company has filed no motion, and has accepted a remand of the case.

As already stated, we recommend that the motion for rehearing be overruled. 
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