First State Bank of Wortham v. Bland

On Motions. Defendants in error have filed three motions in this cause. The first is to strike out the statement of facts because same was not filed in the trial court within *Page 657 the time prescribed by article 2246 of the Revised Statutes 1925. It seems that the Codifying Commission made some radical changes in article 2073 of Vernon's Sayles' 1914 Statutes with reference to the time within which statements of facts can be filed. The present statute requires the statement of facts and bills of exception to be filed within 80 days after the adjournment of court, unless the court may by law continue more than 8 weeks, in which event they must be filed within 90 days after final judgment, unless the trial judge for good cause shown extends the time for filing such statement of facts and bills of exception. This cause was tried at the October term of the Eighty-Seventh district court, which by law began on October 5 and ended on October 30, 1925. The trial court gave the plaintiffs in error 80 days from the adjournment of court on October 30th in which to file the statement of facts and bills of exception, and there was no request made and no order of court authorizing same to be filed thereafter. The record shows that the statement of facts was prepared by the official court reporter on December 9, 1925, and was approved by all the counsel for the respective parties, and was on January 19, 1926, approved as the statement of facts by the trial court, and was, on January 19, being eighty-one days after court adjourned, filed by the district clerk of Freestone county. The court, in its order approving the statement of facts, did not authorize same to be filed. It has been held that the filing of a statement of facts by the clerk after the expiration of the time permitted by law is not in fact a filing. State v. Lincoln (Tex.Civ.App.) 147 S.W. 1195, and, until a statement of facts has been properly filed in the trial court, it cannot be filed in the appellate court. Magee v. Magee (Tex.Civ.App.) 272 S.W. 252. The Supreme Court has recently held under the old law that the trial court may in its discretion permit a statement of facts to be filed after the 90-day period, and that thereafter the appellate court has the discretionary power to authorize the statement of facts to be filed in the appellate court. Ziegler v. Hunt, 280 S.W. 546. This opinion, however, holds that it is absolutely essential for the statement of facts to be first filed in the trial court. The motion to strike out the statement of facts is therefore granted.

Defendant in error's second motion is to dismiss this cause because of an insufficient writ of error bond. They contend that P. J. Small as administrator of the estate of W. L. Tate, deceased, was adversely interested to the First State Bank of Wortham, and is therefore a necessary party as a defendant in error. The petition for writ of error shows that P. J. Small, as administrator of the W. L. Tate estate, joins in and is one of the plaintiffs in error in this cause, joining with the First State Bank of Wortham, and it was not therefore necessary for him to be made a defendant in error. They further contend that the bond does not describe the bank as being a corporation and does not in any way indicate or show that it is a corporation. All of the pleadings filed in the case, as well as the petition for a writ of error, describe the bank as a corporation. We do not think there is any merit in this contention, and said motion is overruled.

Defendants in error's third motion is to dismiss the writ of error because of insufficient service of the writ of error citation. There are some minor irregularities shown in the sheriff's return on the writ of error citation as served on the defendants in error. The defendants in error have, however, appeared in this court and filed briefs, and have thereby waived any defects in said writ of error service. It therefore becomes unnecessary for us to, and we do not, pass on the questions raised by said motion.