This case was decided at the Dallas Term of this court, and now comes before us on motion for rehearing. In appellant's motion for rehearing he contends, that the file mark on the statement of facts and bills of exception, which show that these papers were filed during the term of the District Court, must govern, and that the court can not look to the written agreement filed on the 28th day of December, 1894 — some six months after the court adjourned — to aid it in determining whether the statement of facts and bills of exception were filed during the term. The agreement in question was filed on the 28th of December, 1894, and was a stipulation on the part of the State's counsel to allow the statement of facts and bills of exception to be made up and filed as of the term. Appellant contends, that this agree-ment constitutes no part of the record in the case, and should not have been filed. By Rule 47 for the government of the District Court it is provided, that "no agreement between attorneys or parties, touching any suit pending, will be enforced unless it be in writing, signed, and filed with the papers as part of the record in the case." While this agreement was such a one as could not be enforced, yet it seems to have been reduced to writing, in accordance with the provisions of this rule, appears to have been acted, upon by the parties, and approved by the court; and appellant even now insists, that having the approval of the court, and relying on same, it is such an agreement as this court ought to respect and enforce. Such is not our view. But conceding that the same was improperly filed as part of the record of the case, it furnished this court, when the case was originally before us, with a suggestion that said statement of facts had not been filed within the ten days allowed by law after the adjournment of the court; and the court, acting upon this, in connection with other evidence, struck out said statement of facts, and appellant now, on motion for a rehearing, instead of filing affidavits or presenting other evidence showing that the statement of facts had been filed within the time allowed by law, has filed a motion and affidavits, by which he gravely insists, in the first place, that this court can not look beyond the file mark of the clerk on the statement of facts to ascertain whether or not the same was filed on the day it purported to be.
In answer to this it is sufficient to say, that when an issue of this character is raised we do not believe that the powers of this court are so circumscribed as not to authorize it to take proper steps to determine the truth of the issue thus made. If it were otherwise, the law on the subject requiring bills of exception to be filed within the term, and statement of facts to be filed within the term, or ten days beyond the term, under an order of court, would be a dead letter, as its provisions could be so easily evaded by the action and connivance of the officers of the lower court; and we hold that, whenever the question as to the filing of bills of exception and statement of facts is properly made, *Page 248 this court is not without power to inquire into the truth or falsity of such an issue. In the second place, appellant, instead of filing affidavits showing that the statement of facts was filed on the date when it purported to be, files an affidavit of one of the counsel, admitting that such was not the case, but insisting that, having made an agreement within the term to prepare and file said statement beyond the time allowed by law, and the same having received the approval of the judge below, this court should respect an agreement so made, and should regard the statement of facts as filed within the time allowed by law. Such we do not understand to be the rule of law on this subject. Under an order of the court, ten days beyond the term is the extreme limit allowed by law within which to prepare and file a statement of facts in any given case. Such was considered by the Legislature as ample time, even in extreme cases, and we know of no rule of law by which a judge below is authorized to increase the time. No doubt it was considered by the Legislature as a wise regulation that the statement of facts should be completed as nearly as possible contemporaneous with the trial of the case, while the memory of counsel and the court was fresh as to the facts thereof, and, in practice, unquestionably the wisdom of this regulation appeals to every lawyer who has had occasion to prepare a case for appeal. It goes without saying, that a statement of facts is more easily and accurately prepared at or near after the trial than beyond that, and as time elapses, the difficulty of agreeing upon the facts is enhanced; and this court will not lend its aid in ignoring the plain letter of the law, nor will it approve of any connivance on the part of the lower courts in a departure from the statute on this subject. Because it appears to the court that the statement of facts in this case was not filed within the time allowed by law, this court will adhere to its former opinion, and will refuse to consider the same as a part of the record in this case.
The motion for a rehearing is accordingly overruled.
Motion overruled.
Judges all present and concurring.