McGuire v. Newbill

58 Tex. 314, 1 Tex. L. R. 854, 1883 Tex. LEXIS 18

• Court: Texas Supreme Court
• Decided: January 18, 1883
• Docket: Case No. 1471
• Status: Published

Opinion

Willie, Chief Justice.

The defendants in error have filed a motion to strike out the statement of facts made part of the transcript in this cause, for the reason that said statement was not filed in. the district court during the term at which the cause was tried, nor within ten days nest after its adjournment, by order of the judge who tried it. The district court adjourned on the 30th of January, 1880; the statement of facts was made out by the presiding judge on the 9th of the same month, and was filed on the 7th of April thereafter. In a certificate attached to the statement the judge says, in effect, that “ it was made out at that time in pursuance of an order permitting it to be made up, signed and filed within ten days after the adjournment of court,” but no such order appears in the record. Art. 1379, E. S., provides that “ the court may, by an order entered upon the record during the term, authorize the statement of facts to be made up, and signed and filed in vacation, at any time not exceeding ten days after the adjournment of the term.”

[Opinion delivered January 18, 1883.]

This provision was intended to prevent delay .in preparing a paper the correctness of which depended so much upon the memory of the attorneys engaged in the cause and of the judge presiding at its trial. ' Also to insure its being deposited with the papers and not remaining too long in the hands of the judge, whose official duties might call him to other counties of his district. Hence the two very necessary requirements: first, that an order should be entered of record dúring the term; and second, that the paper should be made up, signed and filed, within ten days after adjournment. The general rule which the statute was designed to enforce was the preparation and filing of the paper in term time. If for satisfactory reasons this could not be done, then special leave of the court must be had to vary from it, which must be evidenced by an order entered on the minutes during the term. The utmost limit allowed is ten days after the adjournment, and within that time the statement must not only be made up and signed, but it must be filed also. These two conditions must be complied with, or the statement of facts will be of no avail.

There is no provision made for any relaxation of the statutory, requirement for any reason or excuse whatever, and we have no power to extend its provisions.

In this case the order was not made in term time so far as is disclosed by the transcript, although the judge recites that it was in his certificate, and we must look to the proceedings of the court alone to ascertain what orders it has placed upon the minutes. The statement, although made up within ten days after the adjournment of court, was not filed for three months afterwards. For want, of a compliance with these two requirements of the statute, we must hold that the statement is improperly in the record of the suit; the motion to strike it out will prevail, and it will not be considered in the determination of the cause in this court. Motion granted.

Motion granted.