Applebaum v. Bass

• Decision Date: 26 October 1908
• Citation: 113 S.W. 173
• Parties: APPLEBAUM v. BASS.
• Court: Texas Court of Appeals

113 S.W. 173

APPLEBAUM v. BASS.

Court of Civil Appeals of Texas.

October 26, 1908.

Appeal from Harrison County Court; H. T. Lyttleton, Judge.

Action by J. H. Bass against J. Applebaum. From a judgment for plaintiff, defendant appeals. Affirmed.

Appellee sued for the conversion of his property; and appellant pleaded that he had purchased the property from an agent of the appellee, which sale by the agent had been confirmed by the appellee. The trial was before a jury, and, in accordance with their verdict, a judgment was entered for the appellee. There is no statement of facts appearing in the record, but there is incorporated in the transcript an affidavit, made by the attorneys for appellant on December 21, 1907, before the county clerk, and filed by him on the same day, setting out the trial of the case, which was on September 12, 1907, and rendition of judgment in favor of the plaintiff, and on the 19th day of October, 1907, the overruling of a motion for a new trial by the court, notice of appeal to the Court of Civil Appeals, and the granting of a 20-day order, from the date of adjournment of the court, within which to prepare and have filed a statement of facts in the cause, and the entry of said order on the minutes of the court, and "that thereafter on the 4th day of November, 1907, the attorneys for the defendant prepared a statement of facts in the case, which they believe contained a full and fair statement of all the facts proven on the trial, and on said day presented the same to the attorneys for the plaintiff; that the attorneys for the parties could not agree upon the statement presented, or upon any other statement that might be prepared by them, and that thereupon afterwards on the same date, presented said statement to the county judge, who tried the case, and informed him that the attorneys for the defendant and plaintiff had failed and were unable to agree upon a statement of facts in the case, and requested such county judge to prepare and file in the case a statement of all the facts, as was required of him by law; that the said trial judge failed to prepare and file in this cause such statement of facts; that the term of the court in which the case was tried began on the 2d day of September, 1907, and adjourned on the 26th of October, 1907." Predicated upon the affidavit incorporated in the record, the appellant made the following assignment of error appearing in the transcript: "The appellant, Applebaum, has been wrongfully and illegally denied and deprived of a statement of facts herein by the county judge before whom said cause was tried, without fault or negligence on the part of said Applebaum or his attorneys." Appellant makes the following proposition under his assigned error: "Where appellant has done everything possible to obtain a statement of facts, and the trial judge fails to perform his duty by filing in the cause a statement of his own, such as required of him by law, when the parties and their attorneys cannot agree, and such judge is requested to do so, the cause will be reversed." The appellee insists that "this is a matter not reviewable by assignment of error; the aggrieved party's remedy being by mandamus to compel the county judge to make up and file statement of facts."

Alvin G. Carter and M. B. Parchman, for appellant. Jno. W. Scott and Jos. H. T. Bibb, for appellee.

LEVY, J. (after stating the facts as above).

We are of the opinion that the appellant cannot, as a legal right to him by assignment of error on appeal, avail himself of the failure of the county judge to make up and file a statement of the facts within the time prescribed by law for him to do so, nor is this court authorized to consider such assignment on appeal of the case as a legal right to appellant, when predicated on such state of facts. As a basis for the exercise of appellate jurisdiction of the Court of Civil Appeals, in cases brought before the court on appeal or writ of error, the statute has prescribed the matters and subjects and method of procedure in relation thereto to appear in the record for review by this court. Article 1014, Rev. St. 1895. And it is quite conclusive from the language of the article, "and in the absence of all these, the case shall be dismissed with costs alone, or with cost and damage, at the discretion of the court," that it was the purpose of the act, and properly should be so construed, to restrict the exercise of appellate jurisdiction of the Court of Civil Appeals, in reviewing cases on appeal or writ of error, to the matters and subjects named in the article. This view is supported in the opinion of Justice Brown, speaking for the Supreme Court, in construing this article of the statute, which is: "In the absence of any of the matters mentioned the case must be dismissed which supports the conclusion that the power of the court is confined to the subjection named." See Ennis Mercantile Co. v. Wathen, 93 Tex. 622, 57 S. W. 946. Ex parte affidavit, setting out the failure of the trial judge to prepare and file a statement of the facts for the use on appeal within the time prescribed by law for him to do so, is not a "subject named," in the article, or included within the subject for review on appeal or writ of error by this court. In the Ennis Mercantile Company Case, supra, in passing upon the exercise of appellate jurisdiction by this court, the Supreme Court said: "The appellate jurisdiction of Courts of Civil Appeals is directed to the correction of errors, committed in the courts, of proceedings prior to and connected with the rendition of the judgment, and they are confined to the record as it is made by the trial court." We quote further from the opinion in the same case: "The failure of the judge in this case to approve the statement of facts presented to him, or to make up one in case of the disagreement of the parties, does not appear in the record in any manner specified by the statute, and was not a proper subject for assignment." Considering that the recital in the statement of that case was that "the affidavits were also filed in the trial court setting up the facts, copies of which are embraced in the transcript," the expression of the court "does not appear in the record in any manner specified by the statute" is significant; and, taken in connection with the further expression, "and was not a proper subject for assignment," it was evidently meant that the matter presented could not be considered on appeal by assignment, even if it had been made, because it was not a subject or matter named in the statute for review on appeal. That this meaning was intended in the case mentioned appears clear in a later opinion by the Supreme Court in the case of Middlehurst v. Collins-Gunther Co., 100 Tex. 349, 99 S. W. 1025. This latter case was where the trial judge had failed to make up a statement of facts for reasons, and his refusal and reasons appeared incorporated in the record, and assignment of error was properly made predicated upon the failure. In this case this state of the record, and in answering that portion of the certified question propounded, "should appellant, in order to avail himself of such error, have applied for a writ of mandamus against the district judge?" Justice Brown, speaking for the court, said: "The facts stated disclosed nothing to prevent the appellant from applying to the Court of Civil Appeals for a writ of mandamus to the district judge, requiring him to make and file a statement of facts. The Court of Civil Appeals should not, under such state of facts consider the matter on bill of exception or an assignment of error." The latter portion of the answer in that case was directly involved in the question, and in the determination of the case, just as it is in the instant case. This matter, as presented, could not be classed as an error "apparent upon the face of the record," as designated in the article, because such errors have been classed as "a prominent error, either fundamental in character, or one determining a question...