
    BAGGETT v. RILEY & HUFFSTETLER.
    (Court of Civil Appeals of Texas. Amarillo.
    April 6, 1912.)
    Appeal and Error (§ 1039) — Harmless Error — Pleadings.
    A count of a petition, ignored during the trial, no instructions being predicated thereon and no evidence in support thereof pointed out, will be deemed on appeal to have been waived, and an assignment raising a question of jurisdiction by excepting such count will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4075-4088; Dec. Dig. § 1039.]
    Appeal from Hardeman County Court; W. S. Banister, Judge.
    Action by Riley & Huffstetler against E. B. Baggett. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    I-I. W. Martin, of Quanah, and Cecil Storey, of Vernon, for appellant. Fires, Decker, Clarke & John, of Quanah, for appellee.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PRESLER, J.

Appellant, from the record, appears to have filed no briefs in this cause, and the same is submitted upon the brief of appellee, prepared in accordance with "rule 42 (142 S. W. xiv), governing the submission of cases in this court. We are of the opinion that the judgment in this cause should he affirmed. Appellant appears to have filed but one assignment in the court below, which, ' as contained in the transcript and presented in appellee’s brief, raises a question of jurisdiction by exception to the third count of appellee’s petition. In the trial, however, this count of the petition was wholly ignored. No right of recovery was predicated thereon by the court’s charge, no evidence in support thereof was pointed out, and we therefore conclude that under such circumstances it must be held to have been waived. So determining, we conclude that the judgment should be affirmed, and it is- so ordered.

Affirmed.

HALL, J., not sitting.  