L. H. Gardner & Co. v. C. E. Broussard & Co.

39 Tex. 372

• Court: Texas Supreme Court
• Decided: July 1, 1873
• Status: Published

Opinion

Walker, J.

Counsel for the appellees insist on dismissing the appeal in this case for the want of a statement of facts.

It is very true the business of the party bringing up the record to see that it contained a statement of the facts, but it is also the duty of the party against whom the appeal is taken to see that the record is complete.

Without a statement of facts, we may, nevertheless, affirm the judgment, or we may reverse it; but there are other difficulties arising in this case. There is a bill of exceptions not signed by the court, and yet the charge of the court, as asked by Collins & Campbell, is erroneous, and was calculated to mislead the jury. The sale of the goods might have been complete, though the evidences of the debt they were intended to pay were not at the time surrendered ; and the court should not have pronounced the sale void on this account, though the fact of the vendees retaining these claims in their hands after the sale of the goods was a circumstance which the jury might have considered in determining whether the sale was bona fide or not.

Touching the matter of the statement of facts, there is an agreement filed in this court on the twenty-second day of February, 1873, with the evidence of Collins, which clearly establishes the fact that both parties considered that there was a statement of facts in the record, and agreed to regard it as such; and yet the signature of the judge to the approval of this statement is shown by the record not to have been made during the term at which the cause was tried.

For the reasons given, and indulging the hope that should this case ever come back to this court it may come upon a more perfect record, we reverse and remand the case.

Reversed and remanded.