4 Tex. 85 | Tex. | 1849
Refore considering any matter growing out of what is presented in this paper, we must first determine if it comes up so authenticated as to he received as a part of tlie record, having all the effect that it would be entitled to had it been signed and sealed as a bill of exceptions by the presiding judge. The act of the Legislature regulating bills of exceptions will he found in section 101 of the act to regulate proceedings in the District Courts passed in 1846, (p. 391,) and is in tlie following words':
‘‘ Whenever in tlie progress of a cause or tlie trial thereof either party is dissatisfied with a decision or opinion of the court, lie may except thereto; and oil reducing his exceptions to writing and presenting them to the judge for allowance, tlie judge shall allow and sign liis name to the same, if they lie true; and if he refuses to do so, lie shall certify in writing tlie cause of such refusal. If any judge shall refuse to sign a bill of exceptions, such bill may be signed by three bystanders who are reputable inhabitants of the State, and tlie court shall permit such bill to be filed. And every bill of exceptions signed by tlie judge or bystanders, and filed in tlie court, shall form a part of tlie record in which the same may be filed.”
To give a fair construction to the section just cited, it appears to me that, to give the paper presented as a bill of exceptions tlie effect of a record, it must first show that it had been presented to tlie judge on trial and liis refusal to sign it,'and Ills certificate of the cause of such refusal. It is only necessary to remark that this is not shown. Without this there is no issue of fact pre
Again, the sectiou of tlie act we have cited seems lo require that the filing of tlie papers so certified should ho with the knowledge and permission of the judge, and not a mere office act of the clerk. This'view seems to he correct, because tlie subsequent section directs what shall be done if the judge will not permit it to lie filed. Affidavits are to be furnished ou each side, from which this court will decide ou the disputed fact. The judge might well, then, refuse his permission to the filing, ou tlie ground that he did not believe it was true; and if he thought so, it would have been right and proper ill him to refuse, or withhohl'his permission to its being filed, leaving the facts in dispute to be ascertained by affidavits, as provided in sectiou 102 of the act. The judge, for aught that appears in this case, knew nothing about the filing of tiie paper; it was such an entry as tlie clerk would make on any paper in his office handed to him by one of tlie counsel. To allow a record to be made of a fact adjudicated is a great innovation; and it would he dangerous to give the law a lati-tnilinous construction. Its requisitions should therefore he strictly enforced. The paper presented! not being authenticated In the way that is believed the law required, cannot be received as a part of the record. The record, stripped' of this paper offered as a substitute for a bill of exceptions, shows no errors or grounds for reversing tlie judgment of the court below.
If it had been in fact shown that there had been no service, and the defendant liad liad no opportunity to file his defense iu the Justice’s Court, tlie spirit of the act requiring such defenses to he set up-in the Justice’s Court would not
Judgment affirmed.