On Motion to Strike Statement of Facts. The motion filed by appellee to strike the statement of facts was submitted to be considered with the case on its merits.
Appellee moves to strike on the ground that the statement of facts was not filed in the trial court within fifty days after rendition of final judgment, as required by Procedural Rule 381. The record reveals that judgment was rendered April 23, 1947; the statement of facts was filed in the trial court June 20, 1947; the trial court neither approved the statement of facts nor did it extend time for filing.
Answering the motion to strike, appellant alleged under oath that the statement of facts was ordered May 14, 1947, was not received from the court reporter until June 11, 1947 at Falfurrias, Texas, where appellant's counsel resided, too late to be filed in the trial court at Dallas by June 12, the last day for filing; but that on June 12 the same was mailed to Mr. Dillard, appellee's counsel, for his approval, signature, and for filing; that he agreed to sign, and on June 20, 1947 sent the statement to the clerk of the trial court to be filed, without making any objection or reserving the right to make an objection to the late filing of the statement of facts; and that the same was timely filed in the Court of Civil Appeals. Wherefore, appellant contends that appellee waived the irregularity and is now estopped to urge the same.
It will be observed that the only case cited by appellee in support of the above contention is that of Seaboard Fire Marine Ins. Co. v. Halbert, Tex. Civ. App. 173 S.W.2d 180. This case, in our opinion, is easily distinguished from the case under consideration, in that counsel for appellee in the cited case, in agreeing to the statement of facts, reserved the right to object to its being filed, because not tendered for filing in time. There was no such reservation in the instant case. We are of opinion, therefore, that the conduct of appellee's counsel in approving the statement of facts and having it filed belatedly, waived the irregularity.
We are furthermore of the opinion that the irregularity was waived as a matter of law under Procedural Rule 404 (formerly, Rule 8 of the Court of Civil Appeals), in that the record was filed in this court on June 20, 1947; whereas, the motion to strike statement of facts was not filed until something over five months thereafter. Courts have uniformly held that the failure to file a statement of facts in the trial court within the time required as not jurisdictional, but an irregularity that may be waived; and that failure to move in the court of civil appeals to strike within thirty days after the transcript is filed, constitutes waiver of any objection for failure to file in the trial court within the time prescribed. This rule was announced in Brown v. Orange County,48 Tex. Civ. App. 470, 107 S.W. 607, writ denied; same ruling in Conn v. Houston Oil Co., Tex.Civ.App. *Page 219 171 S.W. 520, writ ref.; in Jefferson v. Williams, Tex. Civ. App.286 S.W. 614; and in Green v. Gerner, Tex. Civ. App. 20 S.W.2d 1118.
Appellee also contends that appellant failed to assign any error requiring reversal of the cause, as required by Rule 374; also that appellant's brief violates subsection (b) of Procedural Rule 418, in that the points of error urged by appellant fail to direct the court's attention to the errors, if any, of the trial court upon which appellant relies for reversal; therefore, the judgment below should be affirmed.
The record discloses that judgment was rendered against appellant notwithstanding the verdict; hence a motion for new trial was not required by Rule 324; and, a motion for new trial not being required, assignments of error were not required; but only that the errors complained of should be presented in the points of errors relied upon in the brief, as provided in Rule 374.
While the points relied upon are rather general in nature, we think that in view of the liberal rules, they are sufficient to direct the attention of the court to the errors relied upon. In an address before the Houston Bar Association on September 19, 1941, the late Chief Justice Alexander, in discussing the sufficiency of points of error, made the following statement: "It will be noted that the new rules are very liberal as to the requirements of `points'. All that is required is that the point `direct the attention of the Court to the error relied upon.' It will be noted that the note following Texas Rules of Civil Procedure No. 418 contains an example as follows: `The error of the Court in refusing to charge upon the issue of appellant's liability under the family purpose doctrine.' Other points might be illustrated as follows: `The failure of the court to render judgment for defendant on the jury's finding of contributory negligence on the part of plaintiff.' `The error of the court in overruling defendant's motion for a continuance.' `The misconduct of the jury in visiting the scene of the accident during the trial.' * * *."
Therefore, we are of opinion that appellee's motion to strike the statements of facts and to affirm, should be and hereby is overruled.