200 S.W. 174 | Tex. App. | 1917
Lead Opinion
The writ was prosecuted from a judgment by default in favor of defendant in error against plaintiff in error for $232.59, as the balance due the former on an account for rent, based on a contract whereby he leased a store house in Mt. Pleasant to the latter. The trial was to the court without a jury. It did not appear that plaintiff in error excepted to the judgment when it was rendered, or that he complained of it in a motion for a new trial. The ground upon which he asked this court to reverse the judgment was that it was without the support of testimony. This court, being of the opinion that he was not entitled to attack the judgment on that ground, because he had not challenged its correctness in the court below either by excepting to it or in a motion for a new trial, orally affirmed it on the 22d ult., without considering the assignments. It is urged in the motion that the asserted error was one "apparent on the face of the record," which it was the duty of this court to notice and correct, without reference to whether the validity of the judgment was in any way challenged in the court below or not. The decision was in harmony with others by this court and with decision by other Courts of Civil Appeals, and was predicated upon the theory that, in determining whether an asserted error is one "apparent on the face of the record" or not, the word "record" should be given the meaning attached to it at common law, and did not include the testimony heard at the trial. If the word as used in the statute (article 1607, Vernon's Statutes) should be held to include the testimony, it would be the duty of a Court of Civil Appeals in every case appealed to it, without reference to whether the sufficiency of the testimony was questioned by a motion for a new trial or otherwise in the trial court or not, and in the absence even of an assignment on the appeal questioning its sufficiency, to look to the statement of facts, if one was with the transcript, and reverse the judgment if it appeared that it was not supported by testimony. That it has never been thought that the Court of Civil Appeals were charged with such duty is shown by decisions too numerous to cite here, holding, as in Cooper v. Lee,
The motion is overruled. *175
Dissenting Opinion
The statement of facts filed in this court in this case shows clearly that the evidence relied on to support the default judgment appealed from is wholly insufficient. I do not understand that this condition of the record is disputed. The rendition of a judgment for plaintiff under those circumstances I regard as an error "apparent upon the face of the record," which this court is required to notice in the absence of any assignment. Rev.Civ.Stat. art. 1607. I am unable to agree with my Associates in holding that the "record" referred to in the articles cited does not include the statement of facts filed in this court on appeal. This article was enacted in 1892, and appears as section 24 of an act to organize the Courts of Civil Appeals and define their jurisdiction. At that time the transcript filed in the Courts of Civil Appeals embraced the statement of facts. The latter could not be considered on appeal unless so appearing. There is nothing in the act to indicate that the term "record" was to be given a technical signification which would exclude the statement of facts. The presumption is that the term was used in its commonly accepted sense to include all that was embraced within a properly authenticated transcript. It has long been the custom for lawyers and judges to use it in that sense. I can therefore see no occasion for holding that this current meaning should be displaced by an old commonlaw signification which has long since dropped out of practical use. In Hendrick v. Blount-Decker Lumber Co., 200 S.W. 171, recently decided by this court, the writer referred to several cases decided by our Supreme Court which he thinks support this construction. In the two most recent cases there cited the errors called to the attention of the appellate courts, and which it was contended should have been considered because "apparent upon the face of the record," involved issues of fact the determination of which required an examination of the statement of facts. Had the Supreme Court been of the opinion that the statement of facts formed no part of the record to be looked to in passing upon those issues, the question presented might readily have been disposed of upon that ground alone. But, instead of so holding, other phases of the question were discussed at some length in a manner which seems to assume that the term "record" is broad enough to include the statement of facts.
It is contended that the frequent refusal of appellate courts to consider assignments of error complaining in general terms of the insufficiency of the evidence to support the judgment appealed from is inconsistent with the conclusion that the insufficiency of the evidence can under any circumstances be treated as an error "apparent upon the face of the record." When we take into consideration the definition of the word "apparent" adopted by the Supreme Court in Houston Oil Co. v. Kimball,
"Perhaps the best expression is that it must be a fundamental error, such error as being readily seen lies at the base and foundation of a proceeding and affects the judgment necessarily."
Insufficiency of evidence includes all conditions, from an entire absence of any legal evidence to those where the evidence is hardly enough to discharge the burden assumed by the party securing the judgment. Lying between those extremes are many cases which require an extended examination of a complex statement of facts in order to satisfactorily determine the question presented. Under those circumstances the complaining party must comply with the rules if he wishes his assignments considered, because the error is not in such cases "apparent" or "readily seen" upon an inspection of the record. It will be found that it is this class of cases in which appellate courts have refused to consider assignments couched in general terms only which complain of the insufficiency of the evidence. Such cases are entirely different from those where the absence of any legal evidence is readily seen by even a casual inspection of the statement of facts. No plaintiff is entitled to a judgment who is not able to produce sufficient legal evidence to establish his claim. The rendition of a judgment in his favor in the absence of such evidence is a gross injustice and an error which affects the fundamental rights of the defendant. It is an error as grave and serious as any which a court can commit. When we keep in mind the fact that appellate courts are created for the purpose of correcting errors committed on the trial, there appears to be no good reason for giving a restricted construction to the terms of the statute conferring that power. The consideration of meritorious, but informal, complaints on appeal, even when not legally authorized, is not attended by the evil results likely to follow the usurpation of judicial power generally. I believe appellate courts should go as far in that direction as they have the power to go when the ends of justice demand it, and when the language of their limitation is doubtful, that construction should be adopted which enables them to perform their primary duties. In cases like this it required more time to state why the error will not be considered than it does to discover and correct the error.
In my judgment, the complaint on this appeal should have been considered, and the judgment of the trial court reversed. *176
