Texas & N. O. R. v. Davis

60 S.W.2d 505, 1933 Tex. App. LEXIS 720

• Court: Court of Appeals of Texas
• Decided: May 9, 1933
• Docket: No. 2314
• Status: Published

Opinions

COMBS, Justice.

On Motion to Strike Statement of Pacts.

Before the submission of this case appellee filed a motion to strike out the statement of facts. The motion was taken along with the case and we will first dispose of it before proceeding to a consideration of the issues presented by the appeal. The motion is based on the alleged failure of the appellant to comply with the provisions of article 2238, R. S. 1925, as amended by chapter 34, Acts of the 42nd Legislature, First Called Sess„ p. 75 (Vernon’s Ann. Civ. St. art. 2238), relgt-ing to the preparation and filing of statements of fact. The court reporter prepared a statement of the evidence in proper form, certified to its correctness, and filed it with the district clerk among the papers in this case on June 4, 1932. Thereafter on June 9, 1932, Mr. A. J. Thompson, one of the attorneys for appellant, presented the transcript of the evidence to Hon. Charles Hodges, one of the attorneys for appellee, for his examination and approval. Judge Hodges declined to examine or approve it, but signed an instrument, which appears in the transcript, in which the presenting of the transcript of the evidence to him and his refusal to approve it, as above mentioned, is recited, and adds: “We really decline to examine it-to determine whether we can approve it until the provision of the law has been followed, and do not waive any rights.” On refusal of counsel for appellee to examine and approve the statement it was immediately returned to the office of the district clerk by counsel for appellant, where it was still on file when the affidavit of Mr. Thompson was made, which was June 17, 1932. idle record was filed in this court on June 18, 1932, within the time allowed for its filing. Appellee makes the purely technical objection that written notice of the filing was not served upon him and urges a number of objections such as that the record fails to show that the trial court received and considered objections and that it fails to show that the statement was prepared and filed in duplicate, etc. These contentions are without merit. The statement of facts bears the approval of the district judge, the date of his approval not being shown. In the absence of a contrary showing, the presumption obtains that the court acted at the time and in tha manner required by law. Woodward v. Smith (Tex. Civ. App.) 253 S. W. 847. The statement of facts consists of only sixty-five pages. It is evident from the facts recited above that counsel for appellee had ample time and opportunity to examine the statement of facts and present objections thereto to the trial court if he had cared to do so. He does not here contend that the statement of fact is incomplete or incorrect or that he has suffered any injury whatever by reason of the matters complained of in his mo.tion. The motion is overruled.