Assignments of error numbers 4, 5, 6, 7, 8, 9, 10, and 11 all are directed to the court's action in overruling special exceptions to appellee's petition. The courts of our state have uniformly held that rulings of the trial court on exceptions, in order to be reviewed by the appellate court, must be preserved in a recorded judgment entered thereon, and that same cannot be preserved by a bill of exceptions. I. G. N. Ry. Co. v. Straub (Tex.Civ.App.) 7 S.W.2d 112; National Bank of Hopewell v. Marshall (Tex.Civ.App.) 2 S.W.2d 471; Southern Casualty Co. v. Welch Motor Co. (Tex.Civ.App.) 291 S.W. 272; Cohen v. Hill (Tex.Civ.App.) 286 S.W. 661; Hall v. Williams Ellis (Tex.Civ.App.) 267 S.W. 520; Ilseng v. Carter (Tex.Civ.App.) 158 S.W. 1163; Withers v. Crenshaw (Tex.Civ.App.) 155 S.W. 1189; Bishop v. Mount (Tex.Civ.App.) 152 S.W. 442; Daniel v. Daniel (Tex.Civ.App.) 128 S.W. 469, 471 (writ of error denied). We find bills of exceptions setting forth the action of the court in overruling these exceptions, but have failed to find in the transcript any judgment thereon.
Upon the same theory the courts have repeatedly refused to review rulings upon special exceptions where the ruling was shown only by bill of exception. Some of the cases so holding are as follows: Daniel v. Daniel (Tex.Civ.App.) 128 S.W. 469; Withers v. Crenshaw (Tex.Civ.App.) 155 S.W. 1189; Ilseng v. Carter (Tex.Civ.App.) 158 S.W. 1163; King-Collie Co. v. Wichita Falls, etc. (Tex.Civ.App.) 205 S.W. 748, and cases there cited. Wichita Falls, R. F. W. Ry. Co. v. Mendoza (Tex.Civ.App.) 240 S.W. 570; Gardner v. Goodner, etc., Co. (Tex.Civ.App.) 247 S.W. 291; Finklea v. Bank (Tex.Civ.App.) 247 S.W. 320; Simmons v. Simmons (Tex.Civ.App.) 256 S.W. 314, and cases cited.
Ilseng v. Carter (Tex.Civ.App.) 158 S.W. 1163; Withers v. Crenshaw (Tex.Civ.App.) 155 S.W. 1189 (writ of error dismissed for want of jurisdiction); Daniel v. Daniel (Tex.Civ.App.) 128 S.W. 471 (writ of error denied); Alvord National Bank v. Waples-Platter Gro. Co., 54 Tex. Civ. App. 225, 118 S.W. 232; Dobson v. Zimmerman, 55 Tex. Civ. App. 394, 118 S.W. 236; Bishop v. Mount (Tex.Civ.App.) 152 S.W. 442. It follows, therefore, that the special exceptions to plaintiff's petition must be considered as having been waived by the defendants, and the assignments of error based thereon are accordingly overruled.
This matter was fully considered in Daniel v. Daniel (Tex.Civ.App.) 128 S.W. 469. To the same effect see Withers v. Crenshaw (Tex.Civ.App.) 155 S.W. 1189; Ilseng v. Carter (Tex.Civ.App.) 158 S.W. 1163; King-Collie Co. v. Wichita Falls, etc. (Tex.Civ.App.) 205 S.W. 748, and cases there cited. In view, however, of retrial, it is not improper to say that the petition is objectionable in the particulars indicated.
We are without authority to review the ruling of the trial court on exceptions to pleadings, where, as in this case, the only record of such ruling is by bill of exception. District Court Rules 53, 65, 142 S.W. xxi, xxii; Withers v. Crenshaw, 155 S.W. 1189; Ilseng v. Carter, 158 S.W. 1163; King-Collie Co. v. Wichita Falls Warehouse Co., 205 S.W. 748. The issue of contributory negligence of the plaintiff was submitted to the jury by questions 4 and 5, which were as follows: