58 Tex. 187 | Tex. | 1882
This case is now before us on a motion by appellee to strike from the record what purports to be a statement of facts, because the same was not filed within ten days after the adjournment of court. Court adjourned on October 22, 1881, having made an order giving ten days after the adjournment of the term in which to file the statement. The statement filed is dated October 22, 1881, signed by counsel for appellant, certified to as a correct statement by the district judge, without any date to the certificate, and shows the following indorsements: “ Hot examined, because not seen until Hovember 2, 1881, more than ten days after the adjournment of court,” signed by counsel for appellee; also, “ By order of the district judge filed as of October 31, 1881, this 7th day of April, 1882,” signed officially by the district clerk.
Following this certificate are two affidavits of counsel for appellee, and one from the junior counsel for appellant, by whom the testimony in the case had been taken down in short-hand. It appears that one of the counsel for appellee remained at Tyler a day or more for the purpose of agreeing to a statement of facts, and that he left under the impression that none would be made out, and went to Athens, where his partner and associate counsel already was at court. The affidavits of these gentlemen negative any evasion on their part, or any intention to mislead counsel for appellant, and negative also any waiver on their part of the time. They state their readiness to assist at any time in the preparation of the statement, and give reasons why they concluded that none would be made. By the affidavit on the other side, it appears that the statement was made out and ready in three or four days after the adjournment of court, but neither of the counsel for appellee were in their office to receive it, but were out of the county. After the return of senior counsel for appellant, and after his interview with the judge, the statement of facts was, on Saturday, October 29 th, left at the office of counsel for appellee, with instructions to the young
We do not think that counsel for appellee were in anywise bound by the announcement of the district judge that he would instruct the clerk to file the statement of facts as of date within the ten days. The power of the judge to authorize the statement of facts to be “ made up and signed, and filed in vacation,” must be exercised by “ an order entered upon the record during the term,” and the time allowed must not exceed “ ten days after the adjournment of the term.” Clearly, counsel for appellee were not bound to take notice of a mere announcement by the judge of his intention to extend the time beyond the ten days; and, as they substantially deny any actual notice of the announcement, they were in nowise affected by it; The record shows no waiver of time on their part, nor does it show that they were in anywise responsible for the failure of appellants to have their statement filed in time, unless the fact of their absence from their office during a portion of the ten days, whilst attending court in an adjoining county, would make them so responsible.
Certainly, absence designed to prevent the submission of the statement to them, as required by the statute, would be a violation of professional duty, and would excuse the failure of counsel for appellant to comply with that requirement. But there is no pretense of any such evasion in this case. There seems to have been no understanding between opposing counsel as to the time and place when and where the statement of facts was to be agreed to. Naturally the appellant, or party solicitous to secure the statement of facts, would be expected to propose some suitable time and place. If he neglect to do so, and by reason of his neglect opposing counsel are not to be found when sought for, being absent at court at a town easily accessible in time, that diligence which he ought to use would then require him to have the statement submitted to them where they were. It is true that the lack of such diligence in this case was probably partly induced by the assurance of the district judge that he felt sure they would raise no objection as to time. But counsel had no right to act on that assurance. Opposing counsel were in nowise bound to waive the time; and it clearly appears that
The motion to strike out the statement of facts must be sustained. It having been improperly embodied in the record, the costs of'that part of the transcript, as well as the costs of that part containing the affidavit of counsel for appellant, will be taxed against appellant. - ¡Neither that affidavit, nor those of counsel for appellee, should have been filed with the papers of the case in the district court, or included in the transcript sent up to this court. The original affidavits should have been filed in this court in connection with the.motion to strike out. As no objection has been interposed, we have considered the affidavits as if they had been so made and filed. The costs, however, of that part of the transcript embracing the respective affidavits should be paid by the "party improperly filing them in the district court, and the costs thus created by the two affidavits by counsel for appellee will be taxed against appellee.
The motion to strike out is sustained.
¡Motion sustained.