
    ROUNTREE v. ROWE.
    (No. 6507.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 9, 1921.)
    Appeal and error @=>719(1) — Questions not presented by assignments of error not considered, unless going to foundation of action or apparent of record.
    Where no motion for new trial was filed to bring the case within Rev. St. art. 1612, providing that assignments of error need not be filed with the clerk of the trial court if such motion is filed, only questions going to the foundation of the action or apparent of record will be considered on appeal, and, in the absence of any such questions, none attempted td be presented in appellant's brief will be considered.
    Appeal from District Court, McLennan County; Erwin J. Clark, Judge.
    Suit by John P. Rowe against B. P. Roun-tree. Prom judgment on order overruling defendant’s plea of privilege, he appeals.
    Affirmed.
    6. W. Barcus and Alva Bryan, both of Waco, for appellant.
    W. L. Eason, of Waco, for appellee.
   PLY, C. J.

This suit was instituted by ap-pellee against appellant to recover the sum of $1,000, arising out of the breach of a contract in regard to fences around certain land in Deaf Smith county. The suit was made returnable to the October term of the district court beginning on October 6, 1919, and on September 20, 1919, appellant filed his plea of privilege to be sued in Lampasas county. The plea was controverted by appellee. The plea was not acted on by the court at the October term, no order of any kind being entered in connection with the plea. A judgment overrruling the plea was rendered on January 15, 1920, at a succeeding term of the court to the one at which the plea was filed. This appeal is from that order. No assignments of error appear in the record.

Article 1612, Rev. Civ.- Stats, provides that “the appellant or plaintiff in error shall in all cases file with the clerk of the court below all assignments of error, distinctly specifying the grounds on which he relies, before he takes the transcript of the record” and also provides that this is not necessary when a motion for new trial is filed. None was filed in this cause. Numerous decisions have been rendered by appellate courts holding that questions not presented by assignments of error will not be considered unléss they go to the foundation of the action, or are apparent of record. This record does not indicate any such error, and this court will not consider any question attempted to be presented in the brief of appellant.

The judgment will be affirmed. 
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