Texas Employers Ins. Ass'n v. Moser

143 S.W.2d 623

Opinion

SMITH, Chief Justice.

Appellee has filed his motion for leave to withdraw the original transcript from the files in order that certain allegedly incorrect bills of exception may be substituted with corrected bills; or, in the alternative, for writ of certiorari to bring up supplemental transcript embracing corrected bills to be considered in lieu of the original bills. Appellant is contesting the motion. The motion, and the reply, each lias attached to it a certificate of the trial judge reciting, in the first, that certain bills of exception in the filed transcript are incorrect and should be qualified as indicated in the certificate; and, in the second, that the qualifications first certified are themselves incorrect in named particulars and should be amended. The controversy is confused and confusing, and it is to be regretted that the learned trial judge was put, or got, into positions where he felt obliged, ,in order to be fair to the parties alike, to discredit by materially qualifying, in successive and inconsistent certificates, first, original bills of exception which the parties had purportedly agreed to and he had formally approved and ordered filed as a part of the record, and, second, by qualifying the first qualifications. ■

We overrule the motion for leave to withdraw the original transcript, but grant the motion for certiorari, in order that after a full hearing these controversies may be finally settled into final bills of exception, finally approved by the trial judge.

Motion for leave to withdraw transcript is overruled; motion granted for certiorari directing the clerk of the trial court to send up a supplemental transcript including any substitute bills of exception which the trial judge may approve and order filed as a part of the record in this cause; provided such supplemental transcript is tendered in this court on or. before October 10, 1940.