Ackerson v. Farm & Home Savings & Loan Ass'n

• Decision Date: 28 March 1934
• Docket Number: No. 9459.,9459.
• Citation: Ackerson v. Farm & Home Savings & Loan Ass'n, 71 S.W.2d 381 (Tex. App. 1934)
• Parties: ACKERSON et al. v. FARM & HOME SAVINGS & LOAN ASS'N OF MISSOURI.
• Court: Texas Court of Appeals

71 S.W.2d 381

ACKERSON et al. v. FARM & HOME SAVINGS & LOAN ASS'N OF MISSOURI.

No. 9459.

Court of Civil Appeals of Texas. San Antonio.

March 28, 1934.

Rehearing Denied May 9, 1934.

Appeal from District Court, Hidalgo County; Fred E. Bennett, Judge.

Action between Carl A. Ackerson and others and the Farm & Home Savings & Loan Association of Missouri. From the judgment, the former appeal. On appellee's motion to strike the statement of facts.

Motion overruled.

Brown & Bader and J. F. Carl, all of Edinburg, for appellants.

Raymond Edwards, of San Antonio, and Montgomery, Hall & Taylor, of Edinburg, for appellee.

SMITH, Justice.

In this appeal appellee presents a motion to strike the narrative statement of facts prepared and filed herein by appellants in attempted compliance with the statutes providing for appeal upon affidavit of inability to pay costs, in lieu of appeal bond. The motion brings up vexatious questions arising with increasing frequency from the uncertainties, hiatuses, and inconsistencies in the statutes designed to prescribe the two methods of appeal.

Upon hearings the trial court first overruled and afterwards granted appellants' motion for leave to appeal upon their affidavit of inability to pay costs of appeal under articles 2266 and 2278a of the statutes (Vernon's Ann. Civ. St.) as follows:

"Art. 2266. Party unable to give cost bond

"Where the appellant or plaintiff in error is unable to pay the costs of appeal or give security therefor, he shall, nevertheless, be entitled to prosecute an appeal by making strict proof of such inability, which shall consist of his affidavit filed with the Clerk of Court stating that, he is unable to pay the costs of appeal, or any part thereof, or to give security therefor. Any Officer of Court or party to the suit, interested, may contest the affidavit, whereupon the Court trying the case, if in session, shall hear the contest; but if in vacation, the same shall be heard by either the Judge of the Court or the County Judge of the County where the suit is pending and on such hearing evidence may be introduced, the right of the party to appeal shall be determined, the finding certified to, and filed as a part of the record of the case. It will be presumed, prima facie, that the affidavit of appellant speaks the truth and unless contested within ten (10) days after being filed the presumption shall be deemed conclusive. The appeal will not be dismissed for defects or irregularities in procedure, either of form or substance, without allowing the party appealing a reasonable time, not exceeding ten (10) days after notice, to cause to be corrected or amended such defects or irregularities. (As amended Acts 1931, 42nd Leg., p. 226, ch. 134, § 1.)

"Art. 2278a. Free statement of facts on appeal for paupers

"In any civil case where the appellant or plaintiff in error has made the proof required to appeal his case without bond, such party shall make affidavit to such fact, and upon the making and filing of such affidavit the court shall order the official reporter to make a transcript in narrative form in duplicate, and to deliver the same to said party, but such court reporter shall receive no pay for same. (Acts 1930, 41st Leg., 4th C. S. p. 91, ch. 50, § 1.)"

Article 2278a is but a re-enactment of article 2241, R. S. 1925, which had been repealed by intervening acts. Leal v. Berger (Tex. Civ. App.) 299 S. W. 497. And it will be observed that by the provisions of article 2278a, appeals upon pauper's oath may be made upon narrative statement of facts as distinguished from question and answer transcripts of the evidence. Under that article it is plain that the court reporters cannot be required to furnish other than narrative statements. And it is obvious, by necessary implication from that express provision, that a statement of facts in that form is sufficient in case of appeal upon pauper's oath.

Now, the requisites of statements of facts, and the procedure for procuring, approving, and filing the same, in cases of appeal upon bond, are prescribed in different statutes from those providing for appeal upon pauper's affidavit. Articles 2237, 2238, and 2239, as amended by the Acts of 1931 (42d Leg., 1st Called Sess. p. 75, c. 34, §§ 1, 2, 3 [Vernon's Ann. Civ. St. arts. 2237-2239]). It is there provided that the statement of facts must be in question and answer form, embracing bills of exception concerning the admission and exclusion of testimony; or in narrative form embracing only such portions of the evidence as the parties shall agree upon as being pertinent to the questions of law to be reviewed upon appeal. Those statutes lay down a specific course to be pursued for the preparation of the question and answer transcript of the testimony, filing and notice to the parties of such filing, objections by the parties, approval by the trial judge, refiling below, and filing in this court. That procedure applies only to the question and answer transcript; it does not apply to the diminished narrative form, which is to be a creature of agreement between the parties, free of the procedure relating to the question and answer transcript. Further, it is quite obvious that it does not apply to the narrative statement of facts provided for in case of appeal on pauper's affidavit.

From this premise we approach the case presented here, in appellee's motion to strike the statement of facts.

Appellants' motion for rehearing was overruled below on October 28, 1933. According to the last-known patch placed on article 1839, by the Legislature (Acts 1933, 43d Leg., p. 142, c. 67 [Vernon's Ann. Civ. St. art. 1839]), appellants had until about December 27 in which to file statement of facts in this court, unless cause for delay was shown by motion filed in this court on or before fifteen days thereafter. Upon such motion, this court extended that time to January 26, 1934.

On November 14, 1933, appellants filed below their affidavit of inability to pay costs of appeal. On December 13, the trial judge granted appellants' application for leave to appeal on their affidavit, and ordered the clerk to furnish him with a transcript of the record, and the court reporter to prepare and deliver to appellants a "properly certified statement of facts in this cause" without charge.

According to the affidavit of counsel attached to the motion here under consideration, the court reporter filed a narrative statement of facts, in duplicate, in the court below, on January 16. He did not deliver it to appellants, as directed by the court, or notify appellants or their counsel of the filing. Three days later, however, he did notify appellee's local counsel of the filing.

The record presented in connection with the motion to strike shows that appellee's local counsel at Edinburg, obtained possession of the duplicate statement of facts on Friday, January 19, that he examined it and on the following day forwarded it to his leading associate at San Antonio, who received it on Sunday morning; that the latter held it through Sunday and Monday without examining it; that he examined it Tuesday morning by 10 o'clock, and thereupon telephoned his associate at Edinburg, advising the latter that he could not agree to the statement of facts "as apparently contemplated from the form of agreement (to be signed by counsel) attached to" said duplicate, and asking local counsel "if he would not immediately see the judge of the trial court and so report to him and to object to such statement of facts because in narrative form and further because it did not completely set forth the evidence introduced in the trial of this cause, and further did not include the objections and exceptions to the ruling of the trial court in the admission and exclusion of testimony." In the meantime, on January 22, appellants' counsel advised appellee's local counsel that that was the last day for filing the statement of facts, and on the same day presented the original to the trial judge, who examined and approved it, and appellants' counsel thereupon forwarded it to the clerk of this court, who filed it herein on January 23.

It will be observed from the foregoing that appellee's counsel had all of Sunday and Monday in which to examine the statement of facts, but deferred the examination until Tuesday morning, when it was too late to object thereto, as the document was filed here on that morning. It will also be observed that appellee's objections to the statement of facts were, in effect, that it was in narrative form as distinguished from question and answer form; that it did not "completely set forth the evidence introduced in the trial of the cause," and, further, did not include the bills of exception taken during the trial concerning the admission and exclusion of evidence. Those objections are stressed in appellee's motion to strike, and will now be noticed.

It is first objected that the statement of facts is in narrative form, which appellee contends is not only not contemplated but is expressly prohibited by the statute (articles 2238 and 2239, as amended). As has already been shown, the objection is without merit, as the statutes expressly provide for narrative statements of facts in appeals in forma pauperis. Article 2278a.

It is true that another of our Courts of Civil Appeals has held, at least by efficient implication, that the pauper may require the court reporter to furnish him a free question and answer transcript, under the provisions of article 2278a. Dunn v. Allen (Tex. Civ. App.) 63 S.W.(2d) 857. We cannot concur in that holding, for under the specific and unequivocal provisions of that article the court reporter may be required, only, to "make a transcript in narrative form in duplicate" and deliver it to the party demanding it, free of cost. There is a vast difference between a question and answer transcript and a narrative statement of facts, both in the structure of the two documents, as well as...