There is but one question presented on this appeal, which was tersely stated by Judge VAUGHAN in the majority opinion, as follows: "In order to dispose of the question before us, it is only necessary to discuss the authority of Judge Beard to make the order extending the time for filing the statement of facts 80 days, as entered by him. If Judge Beard, under the law, had the authority to make said order, then plaintiff in error was wrongfully deprived of his statement of facts, and the Judgment of the court below will have to be reversed and cause remanded."
The question presented, however, was decided by the majority against the authority of Judge Beard, in the following language: "Judge Beard did not take any part in the proceedings had in the cause, from the presentation of the pleadings to the rendition of judgment; his only act being the hearing of and entering order overruling the motion for a new trial. We therefore hold that he was not the judge before whom the cause was tried, and that he did not have authority to extend the time for filing statement of facts therein, but that authority rested only with Judge Hare, who was the judge before whom said cause was tried."
Having reached this conclusion, the majority affirmed the judgment of the court below.
I dissent from the decision of the majority, on the belief that, under the liberal rule that should have been applied in construing the remedial statute under consideration, regulating as it does the constitutional right of appeal, Judge Beard, who presided at one phase of the trial, passed upon and overruled the motion for a new trial, and entered the final order, from which the appeal is prosecuted, was a judge before whom the case was tried, within the meaning of subdivision 3, art. 2246, R.C.S. 1925, and therefore was authorized to enter the order extending the time for filing the statement of facts. A trial, in my opinion, begins with the action of the court, on dilatory pleas, extends to and includes the final order from which the appeal is prosecuted and all intervening proceedings.
The Supreme Court, in Coalson v. Holmes, 111 Tex. 502, 509, 240 S.W. 896,898, held that the determination of the issues presented by a contested plea of privilege was a part of the trial of the case referred to in article 2243 (2068) (1379), R.C.S. 1925, which provides that: "After the trial of a cause, either party may make out a written statement of facts given in evidence on the trial, and submit the same to the opposite party or his attorney for inspection," etc.
The court said, in part that: "If the evidence submitted on a plea of privilege be brought before the appellate court in either a bill of exception or a statement of facts, we are sure it should be considered. The bill of exceptions is an appropriate means of disclosing proceedings preliminary to the trial of a cause on its merits. But the determination of an issue presented by a plea of privilege may well be regarded as a part of the `trial' referred to in our statute directing the preparation of a statement of the facts given in evidence on the trial. [Citing] Mi Palmo v. Slayden Co., 100 Tex. 15, 92 S.W. 796; G., C. S. F. Ry. Co. v. Muse, 109 Tex. 360, 207 S.W. 897, 4 A.L.R. 613."
In the case of Gulf, O. S. F. Ry. Co. v. Muse, cited in the above case, reported in 109 Tex. 352, 361, 207 S.W. 897, 899, 4 A.L.R. 613, the court held that a trial includes, not only the proceedings in the case up to and including the hearing of evidence and the return of the verdict, but also comprehends the action of the court on a motion for new trial, and, further, the action of the court in setting aside the order, previously entered, granting a new trial. The court said, in part: "Giving the word `trial' its ordinary and accepted meaning in law of `the judicial investigation and determination of the issues between parties' (Century Dictionary; 28 A. E. Enc. of Law, 636), it would just as much include the action of the court on a motion, presented immediately after an order had been rendered granting a new trial, to set aside such order, as it would include the action of the court in granting a new trial."
In Mi Palmo v. Slayden Co., 100 Tex. 13, 92 S.W. 797, the case was tried and a verdict was returned, but no Judgment was entered until at a subsequent term, when, on motion, judgment was entered nunc pro tunc. The court held that the trial was not finally ended until the entry of the nunc pro tune judgment, and that appellant had the right thereafter to prepare and have approved and filed a statement of facts, counting the time allowed by statute from the date the nunc pro tunc judgment was entered. Also see S. E. T. Ry. Co. v. Joachimi, 58 Tex. 452, 454.
From these decisions a rule may be deduced to the effect that a trial, within the meaning of our statutes regulating judicial procedure, is not concluded as long as the case is open for consideration by the court. I think, therefore, that a judge before whom any phase of a trial is brought for consideration is a judge before whom the case is tried, within the meaning of the statute under consideration.
The right of appeal is guaranteed by the Constitution, and a party who considers himself aggrieved may appeal as a matter of right. Republic v. Smith, Dallam's Dig. 407; Forbes v. Hill, Dallam's Dig. 486; Shelton v. Wade, 4 Tex. 150, 51 Am.Dec. 722; Eppstein v. Holmes, 64 Tex. 560, 565. *Page 324
In Shelton v. Wade, supra, Judge Wheeler used the following language: "The laws, regulating the exercise of the right [of appeal] are intended to afford the party every possible facility in its furtherance, consistent with a due regard to the rights of the opposite party; and they should be so construed as most certainly and effectually to attain this object."
Statutes giving and regulating the right of appeal are recognized as remedial in their nature, and should receive a liberal construction in furtherance of the right. 2 R.C.L. 29, § 6. Therefore, where a statute is reasonably susceptible to two constructions, one favoring the appeal, the other adverse, the construction favorable to the right should be adopted.
Judge Hare of the Fifteenth judicial district was transferred for service in tile district courts of Dallas county, under the provisions of chapter 156, Acts of the Regular Session of the Fortieth Legislature, that divides the state into administrative judicial districts, and in the performance of such duty presided at the preliminary stages of the trial below, concluding his services in the case on return of verdict and rendition of judgment. Having performed the duties assigned him, Judge Hare returned to his own district, and thereafter Judge P. O. Beard, of the Sixty-Seventh district was, under the same act, assigned for duty in the district courts of Dallas county, and there came regularly before him this case for hearing on the motion for a new trial, and, from his order overruling the motion, this appeal is prosecuted. As a part of the proceeding connected with the case, he granted appellant's application for an extension of time within which to file the statement of facts.
The hearing on the motion for a new trial, the action of the court thereon, the giving and entering notice of appeal, the application for and the granting of an order for extension of time, all occurred while Judge Beard was presiding, and constituted just as much a segment of the trial as did the proceedings occurring while Judge Hare was presiding, and, in my opinion, it is correct to say, that either was a judge before whom the case was tried, within the meaning of the statute, and was authorized to grant the extension. Any other construction is, in my opinion, illiberal and out of harmony with the spirit and purpose of the remedial statute under consideration. There exists no reason why the request for an extension of time should have been presented to Judge Hare exclusively, because of his familiarity with the case, for, in reviewing the trial on motion for rehearing, it should be presumed that Judge Beard also became sufficiently familiar with the case to determine the matter of granting or refusing the request for an extension.
It is now well settled that, where there is a disagreement as to the facts, as in this case, and the party appealing presents his statement to the trial judge in due time, as was done in this case, it was his statutory duty to prepare and file a statement, and, if he fails to perform that duty, appellant is entitled to have the case reversed and remanded. Broderick, etc., Co. v. Waco Brick Co. (Tex.Civ.App.)150 S.W. 600; Martin v. Martin (Tex.Civ.App.) 229 S.W. 695.
For reasons stated above, I am of opinion that Judge Beard was authorized to enter the order of extension, that appellant did all required of him to secure the approval and filing of the statement of facts, that he was wrongfully deprived of a statement by the refusal of Judge Hare to act in the premises, and, for this reason, the case should have been reversed and remanded for a new trial.
I think there is another view that leads to the same conclusion; that is, this: Both Judge Hare and Judge Beard were taken from their respective districts and assigned to duty, as trial judges in the district courts of Dallas county, under the provisions of the statute, and, while holding court in Dallas county, were controlled by rules of practice and procedure governing in the civil district courts in counties having two or more district courts with civil jurisdiction only (applicable to the civil district courts of Dallas county), as prescribed by article 2092, R.C.S. 1925. Subdivision 21 of this article contains a number of provisions to the effect that a judge of either of said courts may, from time to time, exchange benches or districts, may transfer cases or other pending proceedings from one of said courts to another, may in his own courtroom try and determine any case or proceeding pending in another court, without having the case transferred, may sit in any other court and hear and determine any case there pending, and two or more judges may, at the same time, try different cases in the same court, and each may occupy the courtroom of another judge, and it is made the duty of each judge to whose court a case or proceeding is transferred, to receive and try the same, and shall, in turn, have the power, in his discretion, to transfer any such case to any other of said courts.
Subdivision 26 of said article provides for the selection of a presiding judge, by the judges of the district courts of a county coming under the provisions of the statutes, and authority is conferred upon the presiding judge so selected to assign any case pending in his or in any other of said courts, to any judge or court, may assign any judge to try any case in any of said courts, and it is made the duty of the judge in whose court an assigned case is pending to transfer the same to the court to which it is assigned, and the judge to whom any case is assigned shall receive and try same, and any such judge shall hold any other court or try any case which he is required by the presiding judge *Page 325 to try. In addition to these detailed provisions, to the same purpose and intent, subdivision 24 of said article specifically provides that: "Any judge may hear any part of any case or proceeding pending in any of said courts and determine the same, or may hear and determine any question in any case, and any other judge may complete the hearing and render judgment in the case."
This statute, in my opinion, is conclusive of the question under consideration, and removes all doubt, if a reasonable doubt exists otherwise, as to the authority of Judge Beard, presiding under the circumstances, to grant appellant's application for an extension of time for filing the statement of facts, and, as appellant, within the time extended, presented to opposing counsel and to Judge Hare his statement of the facts, he was entitled to have a statement filed by the judge (article 2240, R.C.S. 1925), and, as he was deprived of a statement without fault on his part, the case should, for this reason, under the well-settled rule in this state, have been reversed and remanded to the trial court for a new trial.