*1 REPORTER SOUTHWESTERN except, being open give case; the best court notice peal Simpson Galveston, Appeals to the Court of at the and defendant G. T. Givil admissions of the Tex., journment bills family that was not could is after ad- he allowed for and other members of his pay debts, suffi- term of which to file and his estate exception cient of facts.” same.” Simpson, T. “Statement. See of G. Appellant question does the truth of facts, pages statement of 108-120; Simpson, order, R. R. testimony facts they stated but contends that Simpson, Gordon D. refusing furnish no sufficient reason facts, pages 130-135; statement Mrs. E. 0. the new trial. facts, pages Simpson, 135-139.” already held that it assignment not entitled consid- the record if there was error in the points eration, out no error charge given by it was invited and judgment, a reversal would and acquiesced appellant, by a statement. followed complain not now be heard to of such only to re- Appellate authorized courts are jury in view of the upon a verdict rendered verse upon the issue submitted the court support jury evidence to when there is special err in instructions mani- verdict, is so or when verdict quested by appellant. . holding disposes weight prepon- festly against appellant’s assign- contention under this clearly to be evidence as derance of the wrong upon holding ment. The facts which this justify conclusion that it portions based are shown other sympathy, passion, prejudice, result of record, and are not based the recitals improper be a It would motive. some clear invasion of overruling contained in the order the motion province of for new and we do not think such re- a verdict on to set aside citals mining could considered in deter- opinion of the court the by appellant’s as- preponderance against “the verdict is signments. con- does not evidence.” The statement best tain opinion We are of that the record discloses presented by the issue no error in the trial which would authorize assignment, we are reversal of the and it is there- go what the evidence to the record to find fore affirmed. upon the issue. assign fifth is no merit [6] There ment, without discussion. and it is overruled assignment complains of last sixth and (No. et al. v. 7985.) BLESI overruling et al. appellant’s the order the court in motion trial because the court new of Texas. Dallas. corporated May 25, for refus in the order his reason Rehearing, On Motion for grant ing trial. The is as the new follows: Appeal <©=>628(2), Error op Appeal “On came on heard the First Dismissal Statement —Failure' to File trial, and the op National Bank’s motion for new same Facts. things following' Upon is in motion, per- made 11 months after in fecting reasons: concluded When and 8 months after tran- presented bank a written this case the that the requesting script, affirmance of issues, special submitted on neither brief nor statement of facts had issues, giving presented time their appellant’s filed, been excuse that the court attorneys plaintiffs’ copy one had failed to transcribo and file the copy. the identical is The court submitted and answer form as bank, except sues, that he as asked required by Sayles’ Vernon’s Ann. Civ. St. ste more elaborate. I had the them fuller and 1914, lants art. is' insufficient to show duplicate, nographer them where neither mandamus plaintiffs’ copy neys. satisfaction positively mitted. the and defendants’ attor to both brought attempt attorneys verbally expressed Both made to a statement of facts from mem- submission. There ory provided by article 2068. the issues sub opinion being then <©=5544(21 Error —Review- Scope op No. 3 bank entitled to issue —Where No Statement Facts. issue) charge (and 5 of No. defendants’1 In the court’s submitted, answered absence of statement of facts rul- regardless ings will how the first issue was admission and exclusion of evidence believing wanted both not be prepared, form it it bank’s fused before submitted from the bill such to and the record that prejudicial court then indorsed on the was done. The both erroneous and requested issues, party. ‘Presented and re complaining first reading charge,’ and or (1) <©=>907 part as a of tho —Review- dered same Validity request. Record — purpose of Rul- ings Presumptions . charge prepared, “When court’s brings up a record attorneys Where show- attorneys or defendants’ bank’s the requested proceedings, ing ble remaining reasona- submitted, issues be will be favor of regardless answered, howof the first issue was rulings, reversed been done. Therefore the motion it would upheld possible things cannot when To which in all overruled. is the action overruling of the case. the defend- @s»For and Indexes other eases and KEY-NUMBER *2 v. BLESI — — <§==>370 — of trial the court should Review Wills Probate Admissibility affirmed, oe reversed, Recoed but should be and the Prejudice. Evidence — remanded, cause out “for the reason that with- incomplete In a review an fault of and after due ruling admitting' of held, the diligence, they nei- where witness to a will cannot he revised prepare have been unable to the record show ther a statement of facts in this cause and file testimony con- sufficient trolled determine if such to herein, briefs of the failure of the appel- jury’s finding the stenographer .official the and of lant. Sixty-Eighth court, district Dallas coun- On Motionfor ty, Tex., to transcribe and file the clerk <§=554(1) State- and court, of the district Pile —Excuse. Pacts —Failure to regular absent form, was That the 'court article 1924 of Vernon’s court, of the the Sayles’ Statutes, the taken at the engaged private time be- much work cause, fully trial of said by as is more to and motion the tween the trial of the cause facts, appellants appeal of to dismiss for want of the sub- compel plaintiff’s failure to not to excuse held mission of this cause heretofore filed in this testimony. transcription of April 4,1918,” court on and because fund- amental error Court, Coun- Dallas from District record. Judge. ty ; Whitehurst, W. P. considered the reasons county Proceeding E. C. in the urged for a reversal of the case purported probate will Blesi others to that'the have been Dangdeau. was instituted of C. A contest H. deprived facts, our- find Josephine Prom others. Pruitt and Mrs. selves unable to to claim that the probate, to will an order appeal deprivation is without and fault court, where taken the district was part. judgment appealed on their again probate, admitted will was May 4, 1917; appellants’ was rendered mo- again appeal. Affirmed. contestants May 7,1917;. tion for new the was Stennis, & all and Adams Cardwell D. perfected May 22, appellants. Thompson, Knight, Dallas, for transcript in the cause was filed this court Harris, Dallas, for Baker August 17, 1917; and the motion of pellees affirm the case for the reasons proceeding TALBOT, com- April 22, During stated was filed appellees county in the menced of Dallas ports although this time in- pur- county, probate Tex., what sup- dicated the affidavits them in filed to be the last will testament port contention that Dangdeau, probating To C. H. of the will a contest was deceased. deprived without fault on their filed notice of others, lants, Josephine Pruitt and Mrs. facts which made it their steps to take First, grounds: mainly compel preparation immediate deceased, at the date the execution transcript testimony, relied a repeatedly will, capacity to not sufficient mental promises the official broken will; second, in the execution make prepare transcript. was dominated and said will the deceased application They for a mandamus never made unduly influenced transcript compel preparation to the voluntary free and act. same was they prepare testimony, nor did at- April 17, 1916, prepare tempt a statement of facts under probate, will admitted court said provisions statute. article 2068 appealed to the court: district the contestants Upon beyond did, seems, district court the will a trial transcript preparation questing again contest- a letter to the was to write appealed to this court. January stenographer on official threatening April filed a [1] On proceed- to mandamus resort asking judg motion in this ings affirmed, court be be day of Feb- the 10th filed notwithstanding cause, ruary, letter failed of August 17, 1917, ap court on filed nothing more yet appellants thereafter filed brief formerly as'they done, continue, than to required by rules and court as state, and because no state statutes ment there transcript of herein, had been fundamental error commit that “on account not concede doWe the cause cause in the dis volume ted try length Answering appel- time to the motion of trict lees affirm, or their counsel to insist that cases <§zz>For KEY-NUMBERin all 204 SOUTHWESTERN REPORTER proper ror in of facts reference action or de- fense.” memory.” raphers stenog- Before the If the counsel were from their recol- admitted or excluded waa merely ancillary proven lection cumulative of the facts the trial of the main *3 n eases reasonably proof, facts in “prepare such an extent accurate state- as that reasonably supposed facts,” it could not ment be not such and we are have say influenced sion the verdict of At its cannot do so now. rate admis- should not cause a we think not should be excused whether it was of that character least such statement not pre- be determined in the absence of a state- correct and n senting appear ment of opposing It does that it to subject-matter testimony rejection. Clearly of said was not cov- made is whol- by testimony ered ly which stood undis- insufficient court to re- this puted. Torrey Cameron, In v. 74 Tex. verse the cause of the that, 11 S. W. the court remarked if the failure appellant brings up a record'which shows the of the proceedings only in reasonable [2-4] Is it in favor of the record the trial committed such that ruling, and the ease will not be re- error fundamental the case as pos- versed sible it that requires a reversal the absence of state ruling up- the case could the Appellants is, facts? it contend early Fulgham held. In Bendy, case of v. that the court admitted over the evidence supra, sought reverse objection testimony of Mrs. charges given, the trial court because of subscribing L. E. witness to the will and refused and the exclusion of certain tes-' offered for timony. disposing questions In of the taking and transcribed Supreme Court held since there same, which, according no statement of facts in the record it could be determined whether which testimony offered, had never been sub charges given scribed the witness nor sworn her. pertinent and refused were or were mere The rule established decisions of the abstractions, where, for the want of such Supreme ques- Court this state statement, it cannot be seen far the how tion is: was affected exclusion “That in absence of a statement of facts charges neither the rulings court in excluding exclusion of the can form evidence will not be un less ex for the reversal ruling ceptions record that er and the and that such nothing There is in the bill roneous, party injury caused served to the admission of the complaining.” Railway Lochlin, 87 Co. v. Tex. complained 469; Railway Edwards, Co. v. the record sent to 29 S. W. 853; Lockett v. Schuren 75 Tex. S. W. court that enables us to that determine Wood, 610; McCarty berg, v. Tex. 60 Tex. testimony necessarily controlled Cavasos, 39; v. Blackwell Jones v. injury 670; Fulgham Bendy, caused Patton, v. Tex. 64. ruling cannot be In revised. Rail- way Lochlin, supra, v. the trial court ad- If it be conceded that the should admission mitted evidence over erroneous, lant, and the court said: not, in the that alone is absence state- “But, given by even if the reasons facts, sufficient to authorize a re- ruling, yet may are not sufficient to sustain a case. To warrant such a dis- versal of the upon and this be that the whole only ap- correct, position must will not decide a party to the detriment of the character pear contained in bill from the statement except upon recovering, facts.” a full view of the exceptions taken to the introduction of the evidence was inadmis- the evidence sible, exception, was, but that There bills language used in Mc- its introduction. Carty just Wood, announcing'the supra, v. rule claim constituted fundamental quoted stated, approv- which is is less reason for the conclusion that there Edwards, Railway above, Co. v. al in cited committed error the trial court that; testimony than there is admission of that judgment, “To reverse the the absence that the the conclusion admission the evi- grounds (the improp- on such dence mentioned discussed constituted evidence), or exclusion of er admission that character error. ordinarily see, should court that' the erred, state of the record error certainty produced with reasonable
must substantial we would to this court not warranted sent injury to the in his cause. disturbing the point applica- law abstract An court, the affirmed. enough. the evidence should ble manifestly wrongful er- y. McKEE REED & REED County Court; J. from Titus On Motion Tabb, Judge. motion believe change examined [5] We Action & Reed Mrs. N. Reed rehearing, of no McKee for defend- and others. good for a thehoin reason is ants, appeal. complainants Reversed ap disposition made of heretofore and remanded. however, occasion, peal. We take practicing at- portion of our who connection opinion ap torneys, alleged sued the for the value relating to the efforts prose- facts, appellants services rendered in a statement to secure a civil cution of action in the district it is said below, preparation of the did, beyond requesting the *4 write, make a the suit and did not towas - judg- January on the for call case on letter to 2S, 1SXLS, ment plaintiffs default was entered favor threatening mandamus to resort May is- 1917. An execution on tran proceedings judgment 16, 1917, sued on day on the June script prepared 10th and filed on was levied real estate owned N. J. February, 1918, failed this letter of of 13, 1917, July on de- McKee. Then said appears a letter from up petition setting form- fendants filed er suit and the default reply referred the letter judgment al- opinion, to court to which was attached misrepresentations leging certain a motion made plaintiffs solely prevented the de- place of the case and the submission heel making appearing de- fendants from stenog docket, that said it rapher at the alleged, defense, fense to the suit. was: as stated to counsel transcript February, file the it would be of the evidence 1918, suit) original they (defendants “That day by the 10th (plain- do not tiffs in did owe the not later than but that it would be judgment original suit) hun- five appears April, dollars, also the 1st five dred defendants, said appellants’ hundred dollars to attach the affidavit of contingency based never contract was on a postponement motion for ed to said of. happenedIf -the made.” contract was stated that re submission the letter, as injunction petition prayed restrain- confidently lied ing the enforcement of the execution and for that said would be general relief. answered ready by April 1, 1918. It further denial, demurrer, general ring specially aver- appellants' from counsel that the affidavit ren- that valuable services prior for some time said ste AiDril contract do The case was under so. dered tried nographer, approval of the trial with the the court without engaged in absent alleged finding misrepresentation private work. These matters were considered judgment perpetually there was entered en- rendering original opinion, our joining enforcement of the regarded together alone were not either Pounders, Pleasant, P. Mt. S. with the other -facts warrant lants had failed to secure a statemtmt of ás Pleasant, lants. Rolston appel Mt. (after stating DEVY, above). has been dis- [1,2] pre It is rule that a who is posed of, rehearing over- making vented valid mis defense ruled. representations fraud or misconduct party, negligence opposite unmixed with may judgment (No. 2000.) or on tho REED & REED v. McKEE al. et after term the vacated court which of Texas. Texarkana. judgment the Power, was rendered. Plummer v. 7; Burnley Rice, v.. Judgment Judgment- »375 —Default rule, And under this in case Vacation. may be authorized to vacate the the party, prevented _A who is duty by misrepresentations it right pleadings court to valid defense determine the on the fraud or oppositeparty, misconductof the parties unmixed judgment part, may judgment on his have the evidence, purpose vacated after term court at which rendered. original judgment vacating the is- to allow <g=>393 —Vacation. present the defendants the petition defense to judgment enjoin to vacate enforcement, perpetually is the to deter- But here en suit'. rights mine the ato joined end pleadings evidence, the enjoin and it plaintiff relief to of action enforcement of the without a hearing. determining the merits Key-Numbered Digests
other ceses see same KEY-NUMBER