39 Tex. 499 | Tex. | 1873
This case presents some very remarkable features. In the case of Harris v. Hopson, 5 Texas, 529, this court received affidavits to prove that an appeal
“It cannot, therefore, act upon a question of fact, such as the death of one of the parties previous to the judgment in the court below, presented for decision for the first time in this court by affidavits.
“If the fact be as alleged, the remedy is in the District Court that rendered the judgment, and not by writ of error to this court.”
In Paris v. Du Bose, 27 Texas, 6, Chief Justice Wheeler delivered a very short opinion, in which he says:
“We are asked to reject a part of the sheriff’s return of service of citation, rendering the return insufficient upon the ex parte affidavits of two attorneys first presented to this court.”
“The verity of the record cannot be thus impeached. We are aware of no precedent to warrant the supplying of an omission in the record, or the rejecting a part of it by such means. In the case of Harris v. Hopson, the affidavits were received for the purpose of preventing a fraud upon the jurisdiction of the court, and from the necessity of the case, there being no other mode of prevention.”
Our decision went as far as we then felt this court would be warranted in going in the direction of allowing affidavits to be filed with a record. We can go no further now. We cannot permit a statement of facts and bills of exception to be supplied by affidavits. Such a precedent would be most dangerous, and in the end subversive of justice.
In this case one of two things is nevertheless true: the court acted in a most unjustifiable manner, showing a plain disposition to defeat the rights of the defendant by a contemptible ruse; or the affidavits of the attorney and deputy clerk are scandalous and libelous.
We shall not undertake in the least to favor the one or the other party; we are not called on to do so. In the absence of a statement of facts, as well as any bill of exception, we must affirm this judgment, which is accordingly done.
Affirmed.