60 Tex. 419 | Tex. | 1883
It is insisted by appellee that the statement of facts copied into the record ought not to be considered as such, for the reason that it is certified to by the presiding judge as an agreed statement, when in fact it is only signed by counsel for appellants ; and also for the reasons stated in the certificate or statement filed by the judge, subsequent to the adjournment of the term at which the cause was tried, notwithstanding it is certified as an agreed statement when in fact it is signed by but one party, the presumption will be indulged that it was properly certified by the judge. McManus v. Wallis, 52 Tex., 534.
The statement of the presiding judge, filed subsequent to the adjournment of the term at which the case was tried, will not be considered in reference to whether or not the statement of facts was properly certified or approved by him. Upon a motion to strike out and suppress a statement, on the ground that the judge had been induced to approve or certify the same on account of deceit practiced by one of the parties or their counsel, supported by proper affidavits, the question might be entertained. But this court will not entertain that question upon the statement of the judge made and filed subsequent to the adjournment of the term. The statement of the judge was improperly copied into the transcript.
Appellants, in their brief, rely upon but one of the errors as
J. D. Stephens, the appellee, testified that he did write the letter to the mercantile agency, dated December 5, 1878; that at the time he believed that Stephens & Johnson were solvent, and would pay their debts and liabilities, and that he was of the opinion that they were good.
Without undertaking to determine whether or not the letter would or not be admissible under the issues made in this case, its exclusion by the court would not constitute such material error as would require the reversal of the judgment, for the appellants had the full effect of that evidence. It was not only testified to by one of the appellants, but was also admitted by the appellee. Hence, if it was error, it must be considered immaterial. Able v. Sparks, 6 Tex., 349; Todd v. Eysart, 23 Tex., 590.
Our conclusion is that the judgment ought to be affirmed.
Affirmed.
[Opinion adopted November 27, 1883.]