Citations
- 23 Tex. Civ. App. 128
Full opinion text
CONNER, Chief Justice.
Appellee has urged a motion to strike out the statement of facts found in the record, and after careful consideration we have concluded that in the interest of the public service it is our duty to do so. The statement in question covers some 149 pages of the record, and appears to consist very largely of a stenographic report of the trial, abounding in instances of questions propounded to the witnesses, in answers thereto given on examination in chief, on cross-examination, re-examination, recross-examination, etc., and in objections urged to the introduction and rejection of evidence, remarks made by court and counsel pertaining thereto, and in other immaterial and irrelevant matter. In illustration of this it may be stated that an effort was made by appellants to correct the objections thus indicated by preparing and presenting to the court for approval a condensed and corrected statement of facts. This condensed statement covers but forty pages of the transcript, 100 pages less than were necessary to set out the statement approved and filed. Appellee’s testimony, as set forth in this condensed statement, is contained in ten pages of the transcript; the same as set forth in the statement to which the motion relates, forty-four pages, and we have been irresistibly driven to the conclusion that the approved statement of facts is in conspicuous violation of the rules prescribing the manner in which such statements shall be prepared. See Rules 72 to 78, inclusive, 84 Texas, 718.
This seems to be practically conceded in behalf of appellants, but it is insisted sufficient excuse therefor has been shown. The verdict and judgment were rendered upon the 6th day of April, 1899. The term of court during which the trial occurred adjourned May 6, 1899, and by order ten days after adjournment were allowed within which a statement of facts might be filed. It was shown that the stenographer who took the notes of a large part of the proceedings was sick with rheumatism, and unable to furnish counsel for appellant with a typewritten transcript . of his notes until the 5th day of May, when such transcribed notes were delivered to them and presented to counsel for appellee, who, on the next dajr, at about 5 p. m., returned such notes, refusing to agree thereto as a statement of facts, suggesting that it be filed after adjournment. Counsel for appellants objected to this course, because the statement contained some of the appellants’' bills of exceptions, and thereupon presented such statement to the court for approval, and insisted on its being filed, which the court did, and ordered the same filed. Afterwards counsel for appellant wrote out the condensed statement of facts herein-before mentioned, to which appellee’s counsel refused to agree, and the same was thereupon presented to the court for approval. This statement was so presented for approval about 4:45 p. m. of May 16, 1899. The court certifies that he considered this statement, with some interruptions in the performance of official business recited, until 10 o’clock of the night of May 16, 1899, and that “this being the last of the ten days allowed the parties in which to file a statement of facts, and the evidence so voluminous I haven’t sufficient time to determine whether or not the foregoing statement is a full statement of all the evidence introduced upon the trial,” and therefore declined to approve such condensed statement, to which exception was taken.
In so declining we are unable to say the court erred, as is assigned. If, in any event, it would be proper for the court to thus cause to be incorporated in the record two distinct statements of fact, we nevertheless are of opinion that such corrected statements should have been prepared and presented within such time as to be sufficient for the court to consider and act intelligibly thereon, and no sufficient reason is made to appear why the condensed statement was not prepared and presented earlier.
¡Sor have we been able to conclude that any sufficient reason has been shown for the filing and approval of the first statement herein referred to. Notwithstanding the sickness of the stenographer, it does not appear that his notes might not have been transcribed by some other competent stenographer, or that the parties in interest had so far forgotten the substantial facts proven as that it was even necessary to have such notes. That it was not necessary, if in any event a sufficient reason, to so file for the preservation of the exceptions, is indicated by the fact that of the assignments of error relating to the introduction and rejection of evidence some nine or more are supported by formal bills duly prepared and filed during the term. Ho reason appears in the record why each exception deemed material might not likewise have been so prepared.
We have carefully examined the record in each of the cases decided by this court and cited by appellant in opposition to the motion, and have found them easily distinguishable in important particulars.
The reasons for requiring the observance of the rules relating to the preparation of statements of facts are well stated by Chief Justice Finley of the Fifth District in the case of Caswell v. Hopson, 43 Southwestern Reporter, 547, and in accordance with the decision in that as well as in other cases that might be cited, appellee’s motion to strike out the statement of facts is sustained.
OX TI-IE MERITS.
The record in this cause is very voluminous, and it has, with great art and ability, been elaborately presented and briefed. Appellant has urged forty-two separate assignments of error, which, with the several propositions, statements, and arguments following them, make a book of 148 pages of’ closely printed matter. The assignments, however, save one disposed of in the ruling on the motion to strike out the statement of facts, all relate to charges given and refused, to the introduction and rejection-of evidence, and to the ruling of the court in overruling the motion for a new trial, and are such as that, in the absence of a statement of facts, we can not say are well taken. A statement therefore of this case is perhaps unnecessary, in view of our ruling sustaining the motion of appellee to strike out the statement of facts in the record, as will more fully appear in our conclusions relating thereto this day filed. Our anxiety, however, that no positive injustice be done has been such that we have nevertheless examined the record, and are of opinion that from the allegations of appellants’ petition and the facts as admitted on the hearing and as apparent from the record, appellants have no material cause of complaint.
The suit was by appellants for damages on account of an alleged breach of a contract for the sale and delivery of certain cattle, f. o. b. the cars, at a point on the Fort Worth & Denver City Railway. The trial resulted in a verdict and judgment for appellee.
The following is the contract sued upon, as set out in appellants’ petition:
“This agreement, made and entered into this the 13th day of October, 1897, by 0. Ooppinger of Tarrant County, Texas, party of the first part, and Walter de S. Maud and Richard Carrow, parties of the second part,
“Witnesseth: That the said party of the first part, for and in con- ■ sideration of twenty-one dollars per head, has this day sold to the parties of the second part all his coming two-year-old steers branded E m E 3 ro 3 and '^E^i on left side, now running and pasturing in the pastures iu Kent and Scurry and adjoining counties, being between 1800 and 2000 head. On the above coming two-year-old steers, said party of the first part agrees to give to the parties of the second part the privilege of a 5 per cent cut. And further, the said party of the first part, for and in consideration of $16.50 per head, has this day sold to the parties of the second part all his coming one-year-old steers, branded E qq E 3 03 3 on left side, now running in his pastures in Kent and Scurry, Mitchell, and adjoining counties, and being between 1500 head and 1600 head; and the parties of the second part agree to pay to the party of the first part $- per head ' for the 5 per cent cut of said coming two-year-old steers and $-for the 10 per cent cut on said coming one-year-old steers. On the above coming one-year-old steers said party of the first part agrees to give the said parties of the second part the privilege of a 10 per cent cut. And said coming yearling steers are not to be weaned or separated from the stock cattle until February, 1898. And said parties of the second part shall, besides, reject all swaybacks, blinds, stags, big jaws, deformed, unmerchantable, or diseased steers. Said party of the first part agrees to deliver the said steers to the parties of the second part f. o. b., either at Clarendon, Amarillo, Texas, or Panhandle, Texas, when notified by the parties of the second part, either in May or June, 1898, upon reasonable notice being given to the said first party.
“The parties of the second part agree to receive the said steers at the place mentioned and on the terms and conditions herein set forth, and further agree to make final and balance of payment to the party of the first part on said steers at the time of delivery. The party of the first part hereby acknowledges receipt from the parties of the second part of $10,000 in payment in advance on said steers.
“The above steers are all native steers, raised in Scurry, Mitchell, and adjoining counties, and are to be of equal average grade, quality and condition with the straight E co E cattle.
.“In the event of the above described cattle not being in fit condition to go on the trail or to be shipped in the cars, owing to drought or unusual severe winter, then the party of the first part agrees to postpone the delivery of the cattle until October, 1898, the parties of the second part paying pasturage at the rate of 75 cents per head, and also paying a further sum of $40,000 on account, said latter payment of $40,000 to be made on or before May 15, 1898.
“Said cattle are to be passed upon by said second parties or their agents before leaving the ranch in Scurry or Kent counties, Texas.