Chickasha Milling Co. v. Crutcher

• Decision Date: 16 November 1911
• Citation: Chickasha Milling Co. v. Crutcher, 141 S.W. 355 (Tex. App. 1911)
• Parties: CHICKASHA MILLING CO. v. CRUTCHER et al.
• Court: Texas Court of Appeals

141 S.W. 355

CHICKASHA MILLING CO. v.CRUTCHER et al.

Court of Civil Appeals of Texas. Texarkana.

November 16, 1911.

Error to District Court, Smith County; R. W. Simpson, Judge.

Action by the Chickasha Milling Company against I. H. Crutcher and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Lawrence Mills, for plaintiff in error.Marsh & McIlwaine, for defendants in error.

HODGES, J.

This was a suit by the plaintiff in error against the defendants in error to recover the sum of $998.40 claimed as the price of goods, wares, and merchandise sold and delivered.The case was tried before the court without a jury, and a judgment rendered in favor of the defendants in error.It is brought to this court upon a writ of error by the plaintiff.

The defendants in error have filed a motion asking that what purports to be an agreed statement of facts be stricken from the record.The transcript shows that the case was tried at a term of the district court of Smith county which began on the 7th day of February, 1910, and adjourned on the 18th of March following.The purported agreed statement of facts contains the style and number of the case, and begins as follows: "To obviate the necessity of the introduction of witnesses to prove the facts as hereinafter shown, it is agreed by and between the parties hereto that the following facts are true."Then follows an enumeration of facts showing the existence of the debt due to plaintiff in error, the drawing of drafts by it in favor of the First National Bank of Chickasha, Okl., their transmission and presentation to the defendants in error, and the method the latter adopted in making payment.This statement is signed by the attorneys for both parties, and was filed by the clerk of the district courtFebruary 25, 1910, and indorsed "Agreed Statement of Facts."Attached to the statement is the following certificate: "I, R. W. Simpson, judge Seventh judicial district of Texas, hereby certify that the cause of Chickasha Milling Company v. I. H. Crutcher, I. H. Crutcher, Jr., and I. H. Crutcher & Son, No. 6,471, tried in the district court of Smith county, Tex., was tried upon the agreed statement of facts hereto attached, and that no other evidence was introduced upon the trial of said cause save and except the agreed statement of facts aforesaid.Witness my hand this October 31, 1910.R. W. Simpson, Judge Seventh Judicial District Texas."Defendants in error urge the following objections to the consideration of this agreed statement: It does not show upon its face that it is an agreed statement of all the facts upon which the case was submitted to the court, and it does not appear from the judgment entry that the case was decided by the district judge upon such agreed statement of facts, nor does it otherwise appear from the record that no other evidence was introduced at the trial except from the certificate of the judge attached to the statement long after the expiration of the term at which the cause was tried, and at a time when the judge had no authority to certify to such statement.They further object to the same statement appearing as a part of the transcript, purporting to be a statement of facts made by the trial judge, because it appears that this cause was tried at the February term, 1910, of the district court of Smith county, and that the term of court at which the cause was tried adjourned on the 18th of March, 1910, and the statement shows upon its face that it was not made up by the judge until October 31, 1910, and was not filed in the district court of Smith county until the 1st day of November, 1910.

Plaintiff in error relies upon article 1293 of the Revised Civil Statutes, which is as follows: "The parties may in any case submit the matter in controversy between them to the court upon an agreed statement of facts made out and signed by them or their counsel, and filed with the clerk, upon which judgment shall be rendered as in other cases; and in such case the statement so agreed to and signed and certified by the court to be correct, and the judgment rendered thereon, shall constitute the record of the cause."

The law contemplates that, where an appeal is taken and the judgment of the trial court is to be reviewed with reference to the facts upon which it is based, the appellate court shall be placed in possession, in some authorized manner, of all the material facts which form the basis of the judgment appealed from.State v. Connor, 86 Tex. 136, 23 S. W. 1103.While article 1293 requires the agreed statement to be used on appeal to be signed and certified by the court, yet it has been held that such certificate is not absolutely essential when it otherwise appears from the record that the agreed statement contained all the facts upon which the judgment was predicated.Bomar v. West, 87 Tex. 300, 28 S. W. 519;Bull v. Jones, 9 Tex. Civ. App. 348, 29 S. W. 804.There is nothing in the record before us which shows that this statement alone formed the basis of the judgment from which this appeal is taken, or that no other...