At a former day of this term, on motion of appellee, we struck out the statement of facts filed by appellant in this cause. Appellant has filed a motion for rehearing and for reinstatement of the statement of facts. We deem the questions presented by the motion of sufficient importance to require discussion and a statement of our conclusions thereon. The testimony adduced upon the trial in the court below was taken down in question and answer form by an official stenographer appointed by the court under the provision of article 1932 of the Revised Statutes. No transcript of the testimony in question and answer form was made and filed by the stenographer as required by article 1924 of the statutes, and no request for such transcript was made by appellant, nor was any transcript in narrative form prepared by the stenographer as provided by article 2070 of the statutes, nor any request therefor made by appellant. In proper time counsel for appellant prepared, or caused to be prepared, a statement of facts, and presented same to counsel for appellee, and requested that he agree that said statement was a full and correct statement of all the material facts proven on the trial. Appellee's counsel declined to agree to the statement, and requested counsel for appellant to have a statement of facts prepared by the official stenographer in accordance with the provisions of the statute before cited. Appellant's counsel refused this request, and presented to the trial judge the statement of facts prepared by him. The judge examined and approved the statement, and ordered it filed as a part of the record, after certifying that the parties had failed to agree upon a statement of facts. The statement prepared by appellant's counsel was made in duplicate, and a copy thereof filed in the court below. The other copy was sent up and filed with the record in this case as a statement of facts.
In his motion for rehearing counsel for appellant says that he deliberately failed and refused to comply with the provisions of the statute above cited because he did not desire to pay the stenographer's fee provided by the statute, and had the right, under article 2072 of the statute, to prepare a statement of facts independent of the stenographer's notes or transcript.
Article 2072 of the Revised Statutes, which is the same as section 13 of the general stenographer's act passed by the Legislature in 1911 (Acts 1911, p. 264), contains the following provision:
"Nothing in this act shall be so construed as to prevent parties from preparing statements of facts on appeal independent of the transcript of the notes of the official shorthand reporter."
We cannot agree with learned counsel for appellant that this provision of the statute permits an appellant, without the consent of the appellee, to ignore the provisions of the statutes above cited, which direct how a statement of facts shall be prepared in cases in which the testimony has been taken down by an official stenographer. We think the provision only means that the parties may by agreement dispense with the official stenographer's report and prepare a statement of facts from their own recollection of the testimony, and does not give to an appellant the right to require the appellee to pass upon a statement prepared by the appellant independent of the stenographer's report.
Article 1924 provides, in substance, that in case an appeal is perfected from the judgment rendered in any case, the official stenographer shall transcribe his notes in question and answer form and file the same with the clerk of the court; said transcript to be paid for by the party ordering the same on delivery.
Article 2070 provides that, upon the filing *Page 1053 of transcript as provided in article 1924, the party appealing shall prepare or cause to be prepared from the transcript filed by theofficial shorthand reporter a statement of facts. It is further provided in said article that the official shorthand reporter shall, when requested by the party appealing, prepare from the transcript filed by such reporter in accordance with the provision of article 1924 a statement of facts in narrative form and deliver same to the party appealing.
These provisions of the statute, we think, clearly show that it was primarily the intention of the Legislature to require the appellant or party appealing, if he desired a statement of facts, to have it prepared in the manner directed in said articles, but realizing that in many cases in which the material facts were few and, if not undisputed, were established by the great preponderance of the evidence it would unnecessarily add to the expense of the parties to have the statement prepared as directed in said article, provided in article 2072 that it was not intended by the provisions of the preceding articles to prevent the parties from preparing a statement of facts independent of the stenographer's transcript. A statement of facts prepared by the parties necessarily means an agreed statement of facts, and the provisions of the statute as to the manner of preparing a statement can only be disregarded by agreement of the parties. These conclusions are not in conflict with the opinion of the Court of Appeals for the Third District in the case of Ferguson v. Kelly, 41 Tex. Civ. App. 338, 91 S.W. 805. That case was an original application for mandamus presented in the appellate court by an appellant in a cause which had been appealed to said court from the district court of Denton county to compel the clerk of the district court to include in the transcript of said cause a statement of facts prepared and filed by the district judge. No objection to the statement of facts appears to have been made by the appellee, who was not a party to the proceedings. The district clerk refused to include it in the transcript on the ground that the testimony had been taken down by an official stenographer, who was ready and willing to prepare and deliver a statement of facts to appellant, but no demand or request therefor had been made. The only question before the court was whether or not the district clerk should be required to include in the transcript sent up by him the statement of facts prepared by the district judge. The decision turned upon the construction of articles 3, 4, and 5 of the stenographer's act of 1905, which is different from the present statute, and the court held that, by the express terms of said act, if no transcript in narrative form of the stenographer's notes was filed, the provisions of the act requiring such transcript to be sent up as the statement of facts did not apply, and it was the duty of the clerk to copy in his transcript of the proceedings the statement of facts prepared and filed by the district judge. We think it clear that this decision has no bearing upon the question presented by the instant case.
We think appellee in this case had a right to require appellant to furnish a statement of facts prepared in accordance with the provisions of the statutes above cited, and that he was not required to agree to or pass upon a statement prepared independent of the official stenographer's report, and such statement, though approved by the trial judge, cannot, over appellee's objections, be considered by us as a statement of facts. The motion for rehearing and to set aside the order striking out the statement of facts is overruled.