Boggess v. Harris

• Decision Date: 11 March 1897
• Parties: BOGGESS v. HARRIS.
• Court: Texas Supreme Court

39 S.W. 565

BOGGESS v. HARRIS.

Supreme Court of Texas.

March 11, 1897.

Error to court of civil appeals of Third supreme judicial district.

Suit by Nannie S. Boggess against A. M. Harris to remove a cloud from title. A judgment in favor of defendant was affirmed by the court of civil appeals, and plaintiff brings error. Reversed.

J. B. Scarborough, for plaintiff in error. O. L. Stribbling, for defendant in error.

DENMAN, J.

The body of the certificate of the district clerk to the transcript in this cause is that "the above and foregoing fifteen pages contains a true and correct copy of all the proceedings had and done on the trial of cause number 143, entitled `Nannie S. Boggess vs. A. M. Harris,' as the same appears of record and on file in this court." After plaintiff in error filed her transcript in the court of civil appeals, defendant in error filed a motion therein to strike out the statement of facts, on the ground that certain words were inserted therein by counsel for plaintiff in error, without the consent of the trial judge, after the same had been approved and filed in the trial court. The court of civil appeals, after hearing affidavits of both sides upon said motion, sustained same, struck out the entire statement of facts, and affirmed the judgment, on the ground that, since the questions raised in the brief of appellant arose out of the evidence offered upon the trial, they could not be considered, in the absence of a statement of facts.

Plaintiff in error assigns as error here the action of the court of civil appeals in striking out the statement of facts, and affirming the judgment. Upon the perfection of the appeal, jurisdiction of the case vested in the court of civil appeals; but the trial court retained custody of and jurisdiction over the record thereof so far as made therein. A certified copy thereof, usually termed the "transcript," was filed in the court of civil appeals, for its information in regard to the proceedings had in the former court. If the clerk had copied any paper into this transcript which, upon the face thereof, appeared to have been improperly included therein, the court of civil appeals would, of course, have disregarded same in determining the cause. If, however, as in this case, a paper which is prima facie properly part of the transcript be correctly copied therein, and it is sought to strike it out in whole or in part, by showing that a portion thereof, as it appears on file in the lower court, was improperly written therein, the proceeding for that purpose can only be had in the court having jurisdiction of the original record of which said paper is a part; for, in the absence of some special provision, each court has exclusive jurisdiction of proceedings to determine the correctness of or to change the face of its own records. Therefore the court of civil appeals was without jurisdiction to determine whether the portion of the statement of facts objected to was improperly written therein; but, upon the filing of said motion, it might have delayed proceedings in the cause until appellee could, by appropriate proceedings, have had the court below determine that question, and make its record speak the truth, and thereupon might have issued a writ of certiorari to bring up such corrected record, and this course can still be taken. Urquhart v. Ury, 27 Tex. 7; County of Live Oak v. Heaton, 39 Tex. 499; Trawick v. Martin Brown Co., 74 Tex. 525, 12 S. W. 216; Ballance v. Leonard, 40 Ill. 72; Railroad Co. v. Garish, Id. 70; Rowley v. Hughes, Id. 71; Wilder v. House, Id. 92; Buckman v. Whitney, 24 Cal. 267; Wilcox v. Majors, 88 Ind. 203; State v. Farrar, 104 N. C. 702, 10 S. E. 159; Saxon v. State, 116 Ind. 6, 18 N. E. 268; Lee Chuck v. Quan Wo Chong, 81 Cal. 222, 22 Pac. 594; Colerick v. Hooper, 3 Ind. 316; State v. Cromwell (N. Y. App.) 10 N. E. 270; State v. Scheper (S. C.) 11 S. E. 623; Stephens v. Bradley, 23 Fla. 393, 2 South. 667; Martin v. Railway Co., 53 Ark. 250, 13 S. W. 765; Thom v. Wilson's Ex'r, 24 Ind. 323; Gamble v. Gibson, 83 Mo. 290; Rodman v. Harvey, 102 N. C. 1, 8 S. E. 888; Boston v. Haynes, 31 Cal. 107; Satterlee v. Bliss, 36 Cal. 521; Bonds v. Hickman, 29 Cal. 460; Lytle v. Lytle, 37 Ind. 283; Mahaffy v. Mahaffy, 63 Iowa, 55, 18 N. W. 685; Brier v. Railway Co., 66 Iowa, 602, 24 N. W. 232; Hughes v. Stanley, 45 Iowa, 622: Peterson v. Swan. 119 N. Y. 662, 23 N. E. 1004; Welch v. Smith, 65 Miss. 394, 4 South. 340. This is not a case where the court was called upon to determine some matter affecting its jurisdiction, as in Harris v. Hopson, 5 Tex. 529, Dial v. Rector, 12 Tex. 99, and Hart v. Mills, 31 Tex. 304. See cases distinguished in Brown v. Torrey, 22 Tex. 55. It may be doubted whether, as an original question, it would not have been the correct practice in Harris v. Hopson for the supreme court to have delayed proceedings until the record could have been corrected in the court below, showing the true date of filing the bond, and then have procured, by certiorari or otherwise, a copy of such corrected record for its information on that point. While we do not feel inclined to question the authority of that case, and those based thereon, we think they should be limited to jurisdictional questions.

Though it be conceded that the court of civil appeals had no jurisdiction to determine whether the objectionable matter was improperly written therein, for the purpose of ascertaining what portion of the transcript was the real record to be considered by it in...