230 S.W. 481 | Tex. App. | 1921
In the above cause now pending in this court on writ of error from the *482 district court of Oldham county, the plaintiff in error has filed an application for a writ of mandamus to require the Hon. Reese Tatum, judge of said court, to file a bill of exceptions tendered by the plaintiff in error. A brief statement of the case and proceedings leading up to the plaintiff in error's contention in reference to the said bill of exceptions is necessary to an understanding of the merits of the application.
The plaintiff in error brought the suit against the railway company for damages for personal injury. The jury answered the issues of liability adversely to the plaintiff, and the court entered judgment for the defendant. The jury also found that plaintiff was not permanently injured, and that $1,000 would compensate him for the injury sustained, for which he claimed the railway was responsible. Plaintiff in error filed a motion for new trial, alleging, in addition to other grounds not necessary to set out here, the following: (1) That "said case was not tried by a fair and impartial jury"; (2) that, "by reason of bias and prejudice of the jury which tried said cause, plaintiff's property has been taken from him without due process of law, as specifically shown in the following paragraphs of the motion"; (3) that "several of the questions submitted to the jury, the answers to which were vital to his recovery, were answered adversely to him, without any evidence whatever to support such answers"; and in support of this statement it was alleged that the finding of the jury that plaintiff was not permanently injured was contrary to the uncontroverted evidence; and also that the finding that plaintiff was damaged only in the sum of $1,000 was contrary to the uncontradicted evidence in the case, which showed that he had sustained damages in a much larger amount. The motion for new trial having been overruled, the plaintiff tendered to the trial judge an instrument, styled "Plaintiff's Bill of Exception No. 2," which set out the fact of the filing of the motion for new trial and that it contained the grounds already mentioned. These statements in the bill were followed with a statement filling some 22 typewritten pages, which counsel for plaintiff in error contends is "all the testimony introduced on the trial bearing on the foregoing issues," and that the language just quoted preceded the statement of such testimony. Then following such statement the bill recited that the court overruled the motion for new trial, to which action the plaintiff in error excepted, etc. The plaintiff in error, in the application for mandamus, alleges that the said district judge refused to approve said bill of exceptions so tendered and "refused to make out and file any bill of exceptions by which the matters complained of by plaintiff in error could be presented to this court in such way as the same could be considered by the court." A bill of exceptions No. 2 does appear in the transcript, though it does not appear whether the judge or counsel for plaintiff in error tendered it to the clerk for filing. The plaintiff in error alleges that the bill contains many alterations and interlineations made by the judge, which changed the meaning of the bill presented by the attorney and not in conformity with the facts. In particular it is contended that the word "not" was interlined in the language preceding the statement of facts made in the bill so that the language of the bill was made to read thus: "The following is not all the testimony introduced on the trial," etc. The prayer of the application is that the said judge "be cited by writ of mandamus to appear before this honorable court and file a true bill of exceptions substantially as requested by plaintiff in error," etc. There is no statement of facts brought up in the record in this court.
We think the petition should be dismissed. A bill of exception is not the proper way to bring up for review the action of the court on the motion for new trial. Rule 53 for district and county courts. But, if it were proper to take a bill of exception in such case if a decision of the assignments in the motion for new trial and referred to in this bill depended on the evidence introduced on the trial, then the appellant should bring up a statement of facts. A bill of exception cannot be considered as a substitute for a statement of facts, and we do not think that the plaintiff in error had the right to have these facts stated in the bill, since we could not consider them in determining the assignments referred to. Dull v. Drake,
"We know of no authority for bringing to the knowledge of this court the facts proved upon a trial of the cause, through the medium of a bill of exceptions. Such a bill brings to our attention rejected testimony, or such as has been admitted over objection; but such as was introduced without complaint, and formed part of the case made before the court or jury, must find its place in the statement of facts; otherwise it will not be noticed."
This being the law, it would do the plaintiff in error no good to have this bill of exception made to read as he alleges it should read, and the mandamus would be useless.
But, even if it were proper practice to take such a bill and to incorporate the evidence in the bill of exception in this way, we do not think we could supervise the making of the bill of exceptions as the plaintiff *483
in error would have us do. Eustis v. Frey,
But if the trial judge, upon presentation of the bill, should modify it, and the party presenting it should take such bill so modified and file it, without objections, he is bound by the modifications, and cannot attack the bill appearing in the record, in the appellate court. Brunner Fire Co. v. Payne,
Upon a careful consideration of the application we have come to the conclusion that it shows no good grounds for mandamus, and we will dismiss it. This action is taken, without notice to the district judge or the attorneys representing the defendant in error. Holding the opinion that we do, it would be useless to require notice to be issued of the filing of the application, and we have followed the practice of the Supreme Court in this matter. Burnett v. Powell,
There is no material variance between the names, the El Paso
Southwestern Railway Company and the El Paso Southwestern Railroad
Company. Railway Co. v. Donahoe,
We think the petition for writ of error does sufficiently show who are the defendants in error, and that they are corporations. The judgment of the trial court is copied into the petition, and in such judgment it is expressly recited that the defendants are corporations, and the petition shows that the defendants named in it are the same defendants named in the judgment. It would have been the better practice to have named the agents of the defendants in error upon whom service might be had, but when motion is made to abate the service on such ground, without denial that the persons served were agents upon whom service might be had, the motion should be overruled. G., H. S. A. Ry. Co. v. Gage,
The sheriff's return of the citation issued commanding service on the Chicago, Rock Island Gulf Railway Company is as follows:
"Came to hand the 8th day of February, 1921, at 5:00 o'clock p. m., and executed the 8th day of February, 1921, by delivering to R. M. Thompson in person, local agent of the Rock Island Railroad, at this place, at the courthouse in Vega."
The service is fatally defective. There is no showing as to how it was made, in that it does not state what was delivered to R. M. Thompson, agent, and, if it could be said that the return was sufficient to show proper service on the "Rock Island Railroad," this would be insufficient, because this name is not identical with the Chicago, Rock Island Gulf Railway Company. Railway Co. v. Block Bros.,
What then should be the effect of sustaining the foregoing contention as to the defect in service? The answer of the plaintiff in error to this question is that the defendants in error have filed their answer, and thus entered their appearance in this court and waived any defects in the service of citation. Before considering this suggestion further, we should say that the only answer filed by the defendants in error consists of this motion. It is prefaced with the statement that the defendants appear "herein for the purpose of this motion only"; and the second part of the motion to strike out parts of the record is presented only "in the event the court should overrule the motion to dismiss." Plaintiff in error cites York v. State,
Of course, an unqualified appearance for any other purpose would amount to a general appearance, and operate as a waiver of any defects in the process. Talbert v. Barbour,
The proper disposition of the case will be to strike it from the docket. Vineyard v. McCombs, supra. The plaintiff in error will be allowed to withdraw the transcript filed herein, to the end that he may take such action as he deems appropriate to perfect the writ.