Johnson v. Brown

218 S.W.2d 317, 1948 Tex. App. LEXIS 893

• Court: Court of Appeals of Texas
• Decided: November 12, 1948
• Docket: No. 4539
• Status: Published

Opinions

WALKER, Justice.

This proceeding is an appeal by writ of error to a default judgment rendered by the 60th District Court of Jefferson County in behalf of defendant in error Brown against plaintiff in error Johnson, whose name is Marion J. Johnson but who is styled in said judgment as Melvin Buster Johnson.

Plaintiff in error Johnson was defendant in the trial court and defendant in error was plaintiff 'there.

Plaintiff alleged that defendant had employed him to “design and supervise the building of a clubroom and the rebuilding and reconstruction of what is known as ‘Buster’s Place’, and agreed to pay this plaintiff the sum of $25 per day and transportation to and from Beaumont, Texas, and to furnish this plaintiff lunch each day.” He alleged part performance by himself and defendant’s breach of the agreement by wrongfully discharging him (defendant nevertheless continuing “to take advantage of the designs prepared by this plaintiff”), to his damage in the sum of $2475, of which he prayed recovery. The damages claimed comprised two items, namely, $225 for work performed for which defendant had not paid, and $2,250 as prospective earnings, of which plaintiff had been deprived by defendant’s breach.

Defendant was served with process, but filed no answer and made no appearance; and on November 6, 1947, the trial court rendered judgment by default against defendant in behalf of plaintiff for the sum of $2,475, being the sum for which plaintiff sued. This judgment recites that “a jury being waived and matters of fact and things in controversy were submitted to the court in their due and regular order, and it appearing to the court upon good and sufficient evidence that (plaintiff) is entitled to recover of and from (defendant) the sum of ($2475)”, it was so ordered.

No motion for new trial was filed, and under Rule 330, part (L), the judgment bécame final “after the expiration of 30 days” from the date thereof.

After this judgment had become final, to wit, on January 31, 1948, defendant filed his petition in error and a supersedeas ■bond and various assignments of error; and on February 3, 1948 citation in error issued to plaintiff. This citation wa-s served upon plaintiff on February 5, 1948.

Among the personnel of the trial court is an official court reporter; and on February 27, 1948, defendant filed a motion in the trial court, praying that the reporter be directed to prepare and file a transcript in Q. and A. form of the testimony heard by the trial court when this cause was tried. Defendant tendered such security for the cost of said transcript as the court might ■require.

This motion was heard and overruled by the trial court on March 12, 1948. The findings of'fact upon which the trial court’s order was founded are stated in the order. From these findings it appears that when this cause was tried on November 6, 1947, the regular judge was absent because of illness; that a special,judge who had been elected by the practicing lawyers and who had duly qualified presided upon the trial of this cause; that the official reporter of the trial court “was actually serving in such capacity upon said date in said (trial court)”, but “notwithstanding the availability of the said (reporter), said court reporter did not function at the hearing of the above captioned matter; and the said court reporter did not take the testimony adduced upon the trial of the above captioned cause.” It was found “that the said court reporter is unable to prepare a transcript in Q. and A. form of the testimony adduced upon the trial of this cause on November 6, 1947 for the reason that the said court reporter did not report the trial of said cause”. Since an order directing the reporter to prepare a transcript would necessarily have been futile, the motion was denied.

Why the reporter failed to take notes of the testimony is not stated; but it is a reasonable inference from the findings to which we have referred that the reporter was available and was willing to serve, but did not act because the trial court and the plaintiff elected to proceed without having said reporter take notes of the testimony.

These findings confirm (and ■ so, in a sense, does the defendant’s motion) the recitation in the trial court’s judgment that testimony was actually heard on November 6, 1947, by the trial court when this cause was determined.

It is evident from the arguments made in the briefs that defendant made no effort to procure a statement of facts except from the official court reporter and we shall assume that he did not. Too, plaintiff says that he did not; the statement is not denied, and there is nothing before us which shows that defendant did attempt to procure any other statement of facts.

Defendant has filed S Points of Error for reversal. Point No. 1 reads: “Where, as in this case, plaintiff brings suit for an unliquidated demand and procures a judgment by default, and the case is properly removed to the Court of Civil Appeals upon assignments challenging the sufficiency of the evidence, and the appealing party is unable to procure a statement of facts through no fault of 'his own, -it is incumbent upon the Court of Civil Appeals to reverse and remand the cause for retrial.”

Defendant argues in support of Point No. 1 that plaintiff’s cause of action was unliquidated and that defendant had a right to a statement of facts in order that he might procure a review of the evidence adduced upon the trial of this cause and a review of the findings based upon said evidence. We agree with defendant that he was entitled to a -statement of facts. The cause of action wa-s unliquidated and plaintiff, as a foundation for his judgment, was required to actually prove the amount of his damages; and the trial court’s finding upon this issue was subject to review by this court on this writ of error-—had a -statement of facts been filed. See Spivey v. Saner-Ragley Lbr. Co., Tex.Com.App., 284 S.W. 210; San Antonio Paper Co. v. Morgan, Tex.Civ.App., 53 S.W.2d 651; Odom v. Pinkston, Tex.Civ.App., 193 S.W.2d 888.

Defendant argues further that Article 2324, R.S.1925, as amended, Vernon’s Ann.Civ.St. art. 2324, required the official reporter -to take notes of the -testimony -adduced at the hearing of this cause on November 6, 1947. We agree with this argument. Article 2324 applies to the trial court and to -the official reporter; it provides in part as follows:

“Each official court reporter shall: attend all se-ssions of the -court, take full -shorthand notes of all oral testimony offered in every case tried in said -court, together with all objections to the admissibility of -the evidence, the rulings and remarks of the court thereon, and all exceptions thereto.

“Preserve all shorthand notes taken in -said court for future use or reference for a full year, and furnish to any person a transcript in question and answer form or narrative form of all such evidence or other proceedings, or any portion thereof as such person may order, upon the payment to him of the fees provided by law.”

This cause was tried within the meaning of Article 2324, because evidence wa-s required to be, and was adduced to prove a fact upon which a judgment depended.

We shall assume, without deciding all of the matters, namely, -that since the official reporter was available and was willing to serve, the trial court had no authority to dispense with the reporter, that the plaintiff could not, except in his own behalf, dispense with the reporter, that the trial court erred in proceeding to hear the testimony adduced upon the trial of this cause without the reporter (available and willing to serve) making notes of said testimony, and that defendant’s failure to appear and answer is to be given n-o significance in determining whether -the trial court did err in so .proceeding, or in determining whether this error is reversible.

Defendant argues that no -statement of facts can be made up under Rule 377, Texas Rules of Civil Procedure, in the absence of a reporter’s transcript of the evidence heard by the trial court, and he seeks in effect to have this court apply on this writ of error the holding made in Pacific Greyhound Lines v. Burgess, Tex. Civ.App., 118 S.W.2d 1100, which follows Victory v. Hamilton, 127 Tex. 203, 91 S.W.2d 697.

We do not agree with this argument; Rule 377 is the governing Rule, but it authorizes the filing of a statement of facts made up by the party, or by the trial judge il the parties fail to agree, independently of a reporter’s notes of testimony. The San Antonio court so held in Crawford v. Crawford, Tex.Civ.App., 181 S.W.2d 992.

Some provisions of Rule 377, especially parts (a) and (c), imply and thus seemingly require the availability of a reporter’s notes; but this implication certainly cannot be made in appeals taken in county court cases where a reporter was not available (see Article 2327, R.S.192S), nor in cases wherein the parties dispense with a reporter. Is there to be no statement of facts made up in such cases? Other provisions of Rule 377 establish the right to make up a statement of facts where no reporter has acted, at least when the trial lawfully proceeded in the absence of a reporter. We refer to the provisions in part (a) of Rule 377, authorizing a party to prepare and file with the clerk a condensed statement of testimony, in narrative form, and requiring him to deliver a copy thereof to the opposing party, and we refer to the provision in part (d) of Rule 377, authorizing the “trial court or judge thereof” to make up a statement of facts, not only where the parties differ as to whether the record truly discloses what occurred in the trial court, but also where the opposing party fails to agree or disagree within a stated time after being furnished with a copy of the proposed statement of facts. We note that in Sullins v. Pace, 208 S.W.2d 583, page 584(Hn. 2) the Court of Civil Appeals held that a narrative statement of facts made by the county court in a case where no reporter had acted was a lawful statement of facts.

The provision of part (a) of Rule 377 authorizing the opposing party to require the reduction of a narrative to question and answer form (which, according to the reasoning in Victory v. Hamilton, supra, concerning Article 2239 as amended in 1931, Vernon’s Ann.Civ.St. art. 2239, would necessarily require the availability of a reporter’s notes), and the provision of part (c) authorizing the opposing party to require additional material, in narrative or in question and answer form, to be included in a statement of facts, are to be construed as not applying to a trial which lawfully proceeded in the absence of a reporter. For instance, these provisions could not be invoked by the plaintiff 'here, for plaintiff allowed the trial to proceed without the evidence being taken down by the reporter.

Further, we see nothing in Rule 377 which would absolutely prohibit the use of the alternative method referred to above (statement independent of reporter’s notes) even in a case like that before us, where we have assumed that the trial court erred in proceeding without the reporter. Such a statement in such a case as this would not represent a completely void attempt. Being satisfied that the method exists, we decline to limit its availability (in the sense indicated) in the absence of any expressed limitation in the Rules. The majority in Crawford v. Crawford, after referring to the procedure in force under the statutes enacted in 1931 and to the apparent expression in Rule 377 of an intent to change this procedure, held that this alternative method of preparing a statement of facts applied even in a case where the reporter had taken notes of the testimony and the parties had been deprived of these notes by the reporter’s death.

These comments leave us wit-h the question, whether the assumed error of the trial court in proceeding without the reporter making notes of the testimony is to be held to constitute reversible error. We think this question depends upon the materiality of this particular error, as in other cases under the Rules. The right to a reporter’s transcript is -a valuable right, but a statement of facts made up .independently of a reporter’s transcript would serve defendant’s purposes. The only fact issue before the trial court was the amount of damages which plaintiff had sustained; all other issues had been determined by the default. See Rule 243; Southern Steamship Co. v. Schumacher, Tex.Civ.App., 154 S.W.2d 283, citing Simmons Co. v. Spruill, Tex.Civ.App., 131 S.W.2d 1026; 25 Tex.Jur., page 406, et seq. (Sections 41 and 42). The only questions which could be raised here concerning the evidence heard by the trial court was whether it was competent and whether it supported the trial court’s finding; and a narrative statement would present these questions as well as a question and answer statement. Plaintiff’s brief indicates that the only witness heard by the trial court on November 6, 1947 was the plaintiff himself, and we have some inclination to believe that a party appealing ought not to be required to take his statement of facts from his opponent, but the trial judge might be able to furnish defendant the necessary information. We cannot say, from this record, that he would be unable to do so, and thus we cannot say that an alternative method of preparing a statement of facts is unavailable to defendant.

It follows that the record does not show that the trial court’s error was a material error because it does not show that the defendant has been deprived of a statement of facts which would present to this court the questions he is entitled to raise. In Taylor & Co. v. Grant & Lovejoy, Tex.Civ.App., 7 S.W.2d 610, appellants argued that the county court had wrongfully deprived them of a reporter, and the Court of Civil Appeals concluded that appellants had not shown that this action materially harmed them for the reason, among others, that appellants had not attempted to f.ollow an available alternative method of preparing a.statement of facts. A party appealing has been denied a new trial where the record showed an available alternative method of preparing a statement of facts, which he had not attempted to use. See Crenshaw v. Montague County, Tex.Civ.App., 228 S.W. 569; Pruitt v. Blesi, Tex.Civ.App., 204 S.W. 714; Joachim v. Hamilton, Tex.Civ.App., 186 S.W. 251; Smith v. Pecos Valley & N. E. Ry. Co., 43 Tex.Civ.App. 204, 95 S.W. 11. The same holding was made in Hall v. Kynerd, Tex.Civ.App., 97 S.W.2d 278, and in McClure v. Miller, Tex.Civ.App., 116 S.W.2d 470, although the basic assumption in these two decisions, namely, that an alternative method existed, seems to be in conflict with Pacific Greyhound Lines, Inc., v. Burgess, Tex.Civ.App., 118 S.W.2d 1100. In Pruitt v. Blesi and in Smith v. Pecos Valley & N. E. Ry. Co., the court also referred to appellant’s failure to apply for mandamus against che reporter.

These conclusions require that Point 1 be overruled and that the judgment of the trial court be affirmed. For defendant’s remaining Points, namely, Points 2, 3, 4 and 5 assign error in various respects to the sufficiency of the evidence acted upon by the trial court, and said Points must be overruled because no'statement of facts was filed. Points 2 and 3 also apparently refer to matters which were established by defendant’s default and which, for that reason, would not be subject to review on this writ of error.

The judgment of the trial court is affirmed.