I am not in accord with the opinion herein delivered on March 28, 1934, and have decided to here express my contrary views.
The effect of the majority opinion, as I understand it, is to hold that where an appeal is perfected by an indigent person by making the affidavit provided for in article 2266, R.S. 1925, as amended by Acts 1931, 42d Leg., p. 226, c. 134 (Vernon's Ann.Civ.St. art. 2266), an entirely different method of *Page 386 appeal is pursued from an appeal perfected by the giving of an appeal bond, as provided for in article 2265, and that such an appeal is not governed by the provisions of articles 2237, 2238, 2239, 2241a, and 2241b of Vernon's Annotated Civil Statutes.
It is my opinion that an appeal by cost bond and an appeal by affidavit of inability to pay or secure costs are governed by the same general provisions of the statutes, with the exception that an indigent person perfecting his appeal by affidavit is entitled to have the court reporter prepare and furnish to him a free statement of facts under the provisions of article 2278a, Vernon's Annotated Civil Statutes.
It further occurs to me that since the Legislature has by the Acts of 1931, 42d Leg., 1st Called Session, p. 75, c. 34, which enacts articles 2237, 2238, and 2239, Vernon's Annotated Civil Statutes in their present form, provided that the statement of facts must be in question and answer form and that, with exceptions not applicable here and not necessary to mention, no other form of statement of facts may be filed, and providing that this law shall be cumulative of the present laws and rules of procedure, except where they are in conflict with such present laws and rules, and where any such conflict exists all present laws and parts of laws so in conflict herewith are hereby expressly repealed, it would not be a strained construction to hold that the words "narrative form" appearing in article 2278a are repealed and that now such an indigent person is entitled to a question and answer form of statement of facts. As pointed out in the majority opinion, this is the apparent holding in Dunn v. Allen (Tex.Civ.App.) 63 S.W.2d 857. It also seems to be the attitude of the trial judge and appellants herein. The trial judge did not order the court reporter to make up a narrative form statement of facts, but a properly certified statement of facts, and, of course, this would mean a question and answer form under present laws. Appellants contend that they were entitled to a question and answer statement of facts, but the reporter did not furnish them what the court ordered.
Appellee points out that the statement of facts is defective in many respects, and it occurs to me that only the trial judge could determine the materiality of these objections.
It is stated in the majority opinion, and correctly so, that the statement of facts herein is not in compliance with the provisions of articles 2238 and 2239 in that it is in question and answer form and not authenticated in the manner therein provided. Article 2239 provides that "failure to comply substantially with the provisions of this act in the preparation of such statement of facts shall be sufficient ground in the Appellate Court for striking out and not considering such statement of facts." To consider this statement of facts is to nullify the provisions of articles 2238 and 2239, supra.
This statement of facts was never filed in the trial court after it was approved by the trial judge. Article 2238 requires, among other things, that the court reporter file with the clerk of the trial court a transcript of his notes and this article further provides, "it shall be made the duty of the court, if the transcript be found to be correct, to approve the same. * * * If said transcript is thus approved and signed by the judge, the same shall be filed among the papers of said cause and become a record therein, but not to be recorded." It is clear from the above provisions that it is the filing of the statement of facts after its approval by the trial judge that makes it a part of the record in the case, and until it has been so filed it should not be considered in the appellate court. First, etc., Bank v. Bland (Tex.Civ.App.) 291 S.W. 650; Ziegler v. Hunt (Tex.Com.App.) 280 S.W. 546; Magee v. Magee (Tex.Civ.App.) 272 S.W. 252; Barrera v. Hart McCormick (Tex.Civ.App.)63 S.W.2d 1084; 3 Tex.Jur. p. 633, § 445; Evans v. Galbraith-Foxworth Lumber Co. (Tex.Civ.App.) 43 S.W.2d 481.
In the recent case of Firquin v. Money, 67 S.W.2d 892, the Waco Court of Civil Appeals held that a statement of facts could be considered by the appellate court though not filed in the trial court. This opinion is based upon an answer to a certified question found in Gerneth v. Galbraith-Foxworth Lumber Co., 117 Tex. 205, 300 S.W. 17, and that answer is based upon the provisions of article 2245, R.S. 1925. It is clear that article 2245 was repealed by the Acts of 1931, 42d Leg. p. 100, c. 66; Acts 1933, 43d Leg. p. 142, c. 67 (Vernon's Ann.Civ.St. art. 1839), which act enacts article 1839, R.S. of Texas, in its present form. Hamilton Motor Co. v. Muckleroy (Tex.Civ.App.) 46 S.W.2d 451, dissenting opinion by Justice Jones approved by Supreme Court in Hunter v. Moore,62 S.W.2d 97. Therefore, I do not think this decision by the Waco court should be followed. Article 2246, as amended by the Acts of 1931, 42d Leg. p. 100, c. 67 (Vernon's Ann.Civ.St. art. 2246), provides that the statement of facts must be filed in the trial court within *Page 387 fifty days after final judgment or order overruling motion for new trial, and that this time may be extended by the trial judge for good cause shown, but such time may not be extended beyond the time for filing the transcript in the Court of Civil Appeals. This statute is the only limitation on the filing of the statement of facts either in the trial court or the Court of Civil Appeals. For this reason it seems important that this limitation should be enforced.
There is another recent case, Garrison v. Great Southern Life Ins. Co. (Tex.Civ.App.) 69 S.W.2d 218, in which the Dallas court refused to strike a statement of facts approved without notice to appellee. It is acknowledged in that case that it is in conflict with two opinions of this court and one by the El Paso court, to wit, Corbett v. Raymondville Independent School Dist. (Tex.Civ.App.) 52 S.W.2d 1116; Sanders Nursery Co. v. J. C. Engelman (Tex.Civ.App.) 59 S.W.2d 954; Big Spring Mutual Aid Ass'n v. Moore (Tex.Civ.App.) 62 S.W.2d 387.
The Dallas case also held that a statement of facts may be withdrawn and amended. There are many decisions to the contrary. Norwood v. McMillan (Tex.Civ.App.) 278 S.W. 331; Trinity S. Ry. Co. v. Lane,79 Tex. 643, 15 S.W. 477, 16 S.W. 18; Williams v. Young,41 Tex. Civ. App. 212, 90 S.W. 940; Speer v. Louisiana Tex. Lumber Co. (Tex.Civ.App.) 90 S.W. 943; Atascosa County v. Alderman (Tex.Civ.App.) 91 S.W. 846; Barcus v. J. I. Case T. M. Co. (Tex.Civ.App.)197 S.W. 478; First Baptist Church v. City of Ft. Worth (Tex.Civ.App.)17 S.W.2d 130, affirmed by Corn.App. 26 S.W.2d 196.
It was said by Justice Smith of this court in the Corbett Case above cited that: "In short, the record conclusively shows that the transcript of the evidence was filed in the trial court and subsequently in this court without giving appellees any notice or opportunity to inspect or agree to the same, as provided by statute. In such case this court has no alternative but to disregard that transcript and strike it from the record." This case was followed in the Sanders Nursery Company Case and again by the El Paso court in the Big Spring Mutual Aid Ass'n Case, and I see no reason now for departing from this rule.
In my opinion appellants' proper remedy in the present case was to apply for a further extension of time and get the statement of facts in proper form before presenting it here, and their failure to do so constitutes negligence and they would not have been in a position to have complained if this court had seen fit to strike out and not considered the statement of facts.
For the reasons above stated, I respectfully dissent from the majority opinion.