Sabine & East Texas R'y Co. v. Joachimi

58 Tex. 452 | Tex. | 1883

Willie, Chief Justice.

This motion has three objects — one to strike out the bill of exceptions, another to strike out the statement of facts, and the third to dismiss the cause because appellant has filed only one copy of brief. As to the first, the ground relied upon is that it was not filed within ten days after the entry of the judgment in the cause. The verdict and judgment were entered on the 24th of November, 1882, and the bill of exceptions was filed on the 5th of December following. Art. 1363, R. S., is to the effect that the bill of exceptions must be presented to the judge for his allowance and signature during the term and within ten days after the conclusion of the trial. Art. 1364 provides that the judge shall submit the bill to the adverse party or counsel, and if the same is found correct, sign without delay, and file it with the clerk during the term. It is questionable whether or not the statute requires the filing of the bill to occur within the ten days, or only the presentation of it to the judge. If just before the expiration of the tenth day the bill should be presented to the judge, he might not be able to have it examined by the opposite counsel, and passed upon by him and filed, before the time limited expired. The term “ without delay ” is somewhat indefinite, and cannot be measured well by days, but should be determined by the circumstances of each case. However, it is unnecessary to pass authoritatively on this, as we overrule this objection for another reason.

The statutory limit is ten days after the eonelmion of the trial. The appellee’s counsel construes this to be the date of the rendition of the verdict and judgment. This may be the ordinary acceptation of the term “ conclusion of a trial,” but we are disposed not to confine it to that time, but to extend it to the date of the entry of the order overruling a motion for a new trial. We consider that so long as the case stands open for the consideration of the court at the term during which the trial occurs, it cannot be considered as concluded. In some states the final judgment is never entered, until the motion for a new trial has been passed upon, for the verdict may be set aside upon such motion. With us the practice is different, but the trial is no more at an end by the rendition of the judgment here, than in those states it would be by the entry of the verdict.

There is the more reason for this construction in reference to bills of exception, because there can be no necessity for using them unless the motion for new trial is overruled. It is frequently the case that a motion for new trial is not taken up until more than ten days have expired since the rendition of the judgment. Should the motion be granted, the statute has,required a party to perform a useless labor, which could never occur if these bills were not required to be filed till after the motion for new trial had been determined by the court. We prefer to give the statute this construction and to fix the practice according to this rule, which we think a fair interpretation of its language and of greater convenience to the profession. This objection, therefore, is not sustained.

As to the second ground of the motion, it is based on the fact that appellant’s counsel did not submit to the appellee or his attorney for inspection his statement of facts, as required by article 1377 of the Revised Statutes, but that the court made out the statement as if upon a disagreement of the attorneys in the cause.

The record shows that the statement is so certified by the judge. The affidavit accompanying the motion shows that appellee’s counsel was in his office at the place where the suit was tried for a week after the adjournment of court, and no statement of facts was presented to him for examination. This is explained by the fact that the judge had left the place of trial and gone to another county, and had ’in his possession a statement of facts made by appellee’s counsel when that made by appellant was presented to him. It is also shown that the statement of facts in the record was made up by the judge partly from the paper givén him by appellee’s counsel and partly from that given him by appellant’s counsel.

Under these circumstances, we do not think this objection should prevail. It has been held that where the judge alone signs a statement of facts, it will be presumed that the parties could not agree upon one. Harlan v. Haynie, 9 Tex., 459.

If he certifies that they could not agree, as in this case, the presumption is much stronger that the fact was such, or that in his opinion it was impossible that they could come to an agreement. From what circumstances he formed this conclusion it is not for us to inquire. He had the two statements in his possession,, and from an inspection of their contents he might have concluded that'they were so wide apart in their recollections of the evidence that they never could come to an agreement. Suffice it to say that he has certified in such a manner as to render the statement a proper one, and we will not strike it out because of facts outside of the record, which, if true, would question the propriety of the conclusion which is set forth in his certificate. This objection, therefore, must be overruled.

[Opinion delivered January 18, 1883.]

As to the third paragraph of the motion which is made a ground for dismissing the cause, it is sufficient to say that the rules do not require more than one brief to be filed on the first day of the assignment. The others will be in time if filed before the hearing of the cause. Rule 37 of Supreme Court.

The motion is denied.

Denied.