1 Posey 330 | Tex. Comm'n App. | 1880
It is insisted by the appellees that upon this transcript a judgment of affirmance, without reference to the merits, is the only judgment that can properly be rendered.
The appellants contend that this is “an agreed case,” under article 1516, and that they are entitled to a revision of the proceedings in the district court.
The article 1516, under the title “ Agreed Case,” reads as follows:
“ After the trial of any cause, when either party intends to remove the same into the supreme court for revision, the parties may, with the consent and approval of the judge who tried the cause, and without the necessity of copying
We are of opinion that the “ agreed case” in this transcript is not a sufficient compliance with the statute to authorize or enable us to revise the proceedings in the district court in the case.
1. It contains no statement of the case. Beyond the statement, which occurs casually in a lengthy recital of facts, that “ the plaintiffs brought this suit on the 20th March, 1876,” it is utterly silent for what it was brought; it contains no information of the nature or character of the suit; what claim the plaintiffs make, or what defenses the defendants have. The judgment discloses that the defendants recovered their costs and that the plaintiffs took nothing by their suit; but what issues were involved in the controversy, or what questions were raised upon the facts recited in the statement, it is not possible to state with that accuracy necessary to an intelligent decision of the case. And, if we could look outside of it to ascertain its objects, the assignment of errors sheds but an ineffectual ray upon the subject.
2. Article 1516 requires “ a statement of the case, as well as of the facts proven,” and that this shall' be with the consent and approval of the judge. The certificate of the judge does not purport to consent to and approve this state
3. The statement is required to be signed arid certified by the judge and filed as a part of the record. .The certificate of the judge to this paper, made the 28th February, 1878, does not appear to have been filed.
4. It is evident that this statement was not only not such a statement of an agreed case as is required by law, to bring up a case for revision, but that it was not so intended to be.
It is not made out after the trial, but before the trial, and, as is shown upon its face, for the purposes of the trial, as “ an agreed statement of facts ” upon which the court below might render judgment according to the law arising upon the said facts.” It neither had, nor required for that purpose, nor did it contemplate, the consent or approval of the judge; nor could it, indeed, have derived any efficacy from the approval of the judge, unless we can attribute to him judicial knowledge of the facts of a case as yet untried. There is nothing in this statement to indicate that it was ever intended to be or agreed upon as a statement of the case and the facts proven, with a view to revision of the case upon appeal.
The transcript in this case is too imperfect to require an affirmance of the judgment. In accordance with article 1033 of the Revised Statutes, we are of opinion that the proper judgment to be rendered is a dismissal of the appeal.
And we so conclude, and award that this appeal be dismissed.
