58 Tex. 603 | Tex. | 1883
Lead Opinion
It is urged by counsel representing the appellees in this cause, that the statement of facts found in the record should not be considered by the court, because it was made up and filed after the final adjournment of court, and no order had been made during term time allowing this to be done.
The term ended, as appears by the caption of the transcript, on the 19th of May, 1882, and the statement of facts was signed by the judge on the 23d, and filed on the 25th of the same month. These, therefore, occurred within ten days after the close of the court; but there does not appear in the transcript any order of the court entered üp in term time, allowing the statement to be made up and filed after adjournment. This is an essential statutory requirement which must be complied with in all such cases, as we have already held in the case of McGuive v. Newhill, lately decided, and on the authority of that decision the present statement of facts will be disregarded, and the appeal considered as if it formed no part of the record.
The only assigned errors that we are asked in the brief of appellant’s counsel to consider are the first and fifth; the one relating to the charge of the court, and the other to the proper conclusion to be drawn from the evidence. As there is no evidence before us, no notice can be taken of this fifth assignment. It has also been held in several cases by this court, that as a general thing we will not revise the charges of the court where there is no statement of the facts proved on the trial brought up with the record. This is the general rule, and the exceptions are few and well defined. It will be presumed that everything in the way of evidence that could have been legally introduced under the pleadings to sustain the verdict was actually proven on the trial; and if the charge is not so glaringly erroneous, taken in connection with the pleadings and the verdict, as to leave no doubt but that the finding of the jury was controlled by the improper instructions of the court, it will not be revised. McGaughey v. Bendy, 27 Tex., 534; Burt v. Alford, 22 Tex., 399; Birge v. Wanhop, 23 Tex., 441; Anding v. Perkins, 29 Tex., 348.
The rule was thus laid down in Armstrong v. Lipscomb, 11 Tex., 649: “ When the facts as proved are not embodied in the transcript, the case stands here as if either no evidence had been introduced, or only such as had authorized the verdict; and that when facts to sustain the issue are not shown to have been proven, the instructions given or refused must be regarded as abstract propositions, and as such not authorizing a reversal of the judgment, when such judg
The allegations of the petitions' of plaintiffs, filed in this cause, were amply sufficient to show that their homestead had never been abandoned, and to entitle them to the verdict which they obtained for its recovery. The charge of the court, so far from being glaringly erroneous, is conformable to the previous decisions of this court on the question of homestead abandonment. Cox v. Shropshire, 25 Tex., 116; Cross v. Everts, 28 Tex., 132, 133; Thomas v. Mullins, 50 Tex., 269; Woolfolk v. Rickets, 42 Tex., 358.
The charge asked by appellant and refused by the court, even if embodying a correct principle of law—upon which, however, we do not propose now to express an opinion■—-must be considered as an abstract proposition, unsupported by facts, and as such its refusal does not authorize a reversal of the cause. If, under the circumstances of this appeal, we must treat the pleadings of the plaintiffs below as fully proved on the trial, tjiere was no fact in evidence to authorize the court to give this charge; for there is no such allegation as that the appellee Margaret McGowen ever dedicated or became satisfied with any other place as her homestead besides the one for which she brings suit.
Meither can this appellee complain of the charge of the court as to the kind of verdict the jury should render in behalf of the intervenors against the appellee Ben McGowen, nor of the form of verdict which they did render in this respect. This part of the verdict was in favor of appellant, who ivas infcervenor below, and gave him all the monied judgment he was entitled to under the pleadings of appellees as against Ben McGowen, and the latter has not appealed, or in any manner complained in this court of any of the proceedings had in the cause.
We find no error in the judgment of the court below, and it is affirmed.
Affirmed.
[Opinion delivered February 6, 1883.]
Rehearing
On Motion foe Beiiearing.
In deciding this case on a former day of this term, we disregarded the statement of facts embraced in the record because it was made up, signed and filed after the close of the term of the district court at which the cause was tried, without ' an order previously entered allowing this to be done. We examined the verdict and judgment, as well as the charges of the judge
Bo excuse is offered as to why this defect in the record was not discovered before the cause was submitted, and why the oertiorari was not asked to perfect it before the court was compelled to undergo the labor of examining the case under the supposition that no such order had been made in the court below. Inadvertence or inattention of the clerk to his duties in making up the transcript does not excuse an appellant for failing to perform his duty in bringing the appeal properly before this court. Due scrutiny of the record will enable him to discern defects in it, and have them rem-. edied in time; and should the clerk refuse to make up the transcript properly, the appellant has his remedy to compel him to the perform-, anee of this duty.
This cause was tried in the district court on the 16th day of May-,, 1882; the transcript was made up and certified on the 20th day of December, 1882; it was filed in this court January 8, 1883, and was submitted for decision January 31, 1883. Abundant time was allowed appellant to see to the proper making up of the transcript; to examine, it after it was made up, before filing in this court, and especially before making a submission of the cause; before submission, briefs were filed by the counsel for appellees, in which the defect above stated was called to the attention of the court, and necessarily to that of appellant’s counsel, and we were asked to disregard the statement of facts.
It was not too late even then to ask for the certiorari, and had appellant done so the record could have been perfected, and the cause would have been considered as well upon the evidence as upon the pleadings. After a cause is once submitted upon a transcript supposed to be correct, as the parties have made no objection to it, and we have decided it upon such transcript, we cannot undertake to reexamine such cause because the counsel for either party discovers a defect in the transcript, which, if supplied, might possibly lead us to
In the case of Davis v. McGehee, 24 Tex., 209, a mistake in the record was brought to the attention of the court after submission of the cause, and a motion for certiorari denied, although it was apparent from the papers accompanying the motion that the transcript was incorrect.
To prevent any future application of this character after the record is in our hands for decision, we have thought it proper to put our decision on this motion in writing, and the rule, laid down in it will be hereafter rigidly enforced. The motion is denied.
Denied.
