Corralitos Co. v. Mackay

• Decision Date: 28 January 1903
• Citation: 72 S.W. 624
• Parties: CORRALITOS CO. v. MACKAY.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

72 S.W. 624

CORRALITOS CO. v. MACKAY.^*

Court of Civil Appeals of Texas.

January 28, 1903.

Appeal from district court, El Paso county; A. M. Walthall, Judge.

Action by Hugh Mackay against the Corralitos Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Millard Patterson and C. N. Buckler, for appellant. R. V. Bowden, for appellee.

FLY, J.

This suit was instituted by appellee to procure an accounting between him and appellant, and to recover from appellant the sum of $1,972.08, with interest at the rate of 6 per cent. per annum from the 22d day of April, 1899. A trial by jury resulted in a verdict and judgment for appellee in the sum of $1,460.20, with interest at 6 per cent. per annum from April 22, 1899.

After the record in this case had reached this court, a motion to strike out the statement of facts was made by appellee, which was not considered by this court, on the ground that the district court alone could correct its record. Appellee then filed his motion in the district court to strike the statement of facts from the record for the following reasons:

"First. Said alleged and pretended statement of facts is neither a correct nor complete statement of the material facts proved in said cause; and, second, because in more than one instance, as will be hereinafter shown, it misstates the testimony as to matters material to plaintiff's rights, and omits a large amount of testimony material to plaintiff's rights, as will be also shown; and, third, because said alleged and pretended statement was presented to the trial judge for his certificate and signature without the consent or knowledge of plaintiff or his attorney, and without any effort being made by defendant's attorneys to agree with plaintiff's attorney upon a statement of facts to said cause; and, fourth, because the certificate and signature thereto of the Honorable A. M. Walthall, the judge of this court before whom this cause was tried, was procured by defendant's attorney, C. N. Buckler, by stating, and thereby wrongfully creating upon the mind of the said judge the impression and belief, that said alleged and pretended statement of facts was substantially in accordance with plaintiff's contention of what it should be, when in truth and in fact it is not nor was not so; fifth, because said alleged and pretended statement of facts was not prepared by the Hon. A. M. Walthall, the judge of this court, before whom said cause was tried, and whose certificate and signature are attached to same, nor was it examined or read over by him, nor were the contents thereof known to him at the time he signed the same, and same was signed and certified by said judge without having examined any statement of facts prepared and furnished by plaintiff, and without giving plaintiff any opportunity to be heard concerning said statement, or to present a statement of facts, said judge being led into so doing by the improper action and said incorrect statements of defendant's attorney, C. N. Buckler."

Appellant appeared, and answered to the motion, and it was tried before the Honorable A. M. Walthall, who had tried the cause on its merits, and, after hearing the testimony, he entered the following order: "Now, on this 3d day of November, A. D. 1902, came on for hearing the motion of the plaintiff heretofore filed in this cause to strike out from the records and files the statement of facts heretofore filed in this cause by the defendant in the office of the clerk of this court, which bears the clerk's file mark of date March 3, 1902, and it appearing to the court that defendant was duly served with notice of said motion, and defendant having answered to said motion, and agreed that the same be set down for hearing on this date, and both parties appearing by their respective attorneys, and announcing ready for trial on said motion, the court proceeded to hear same, and after hearing and considering said motion and the exhibits attached thereto, with all affidavits and defendant's answer and affidavits made a part thereof, the court doth find that said statement of facts so filed is not a statement agreed upon by the parties or their attorneys, and signed by them, and approved by the judge after finding same to be correct, as provided by article 1379, Rev. St.; nor is the said statement a correct statement of facts made out by the judge from respective statements submitted to him by the parties and from his own knowledge of the facts proven on the trial, and ordered filed and made a part of the record, as provided by article 1380, Id., and that the certificate of the trial judge to said statement of facts should not have been given, nor said statement of facts filed in this case: It is therefore ordered and adjudged by the court that said motion be sustained, and that said statement of facts so filed by the defendant in this cause in the office of the clerk of this court, and bearing file mark of the clerk of this court the 3d day of March, A. D. 1902, and appearing to be a statement prepared by the trial judge, be, and the same is hereby, stricken from the records and files in this cause, and for naught held, and that plaintiff recover of and from the defendant, the Corralitos Company, all his costs in and about this motion laid out and expended, for which execution may issue."

The proceedings on the motion were embodied in a supplemental transcript, which, by agreement of the parties, was made a part of the record in this cause.

The...