Crawford v. Crawford, 11425.

• Decision Date: 12 July 1944
• Docket Number: No. 11425.,11425.
• Citation: 181 S.W.2d 992
• Parties: CRAWFORD v. CRAWFORD.
• Court: Texas Court of Appeals

Page 992

181 S.W.2d 992

CRAWFORD v. CRAWFORD.

No. 11425.

Court of Civil Appeals of Texas. San Antonio.

July 12, 1944.

Rehearing Denied August 9, 1944.

Appeal from District Court, Thirty-seventh District, Bexar County; C. K. Quin, Judge.

Suit for divorce by Paul D. Crawford against Mary S. Crawford. From a judgment awarding plaintiff a divorce, defendant appeals.

Judgment affirmed.

G. Woodson Morris and Tom J. Newton, Jr., both of San Antonio, for appellant.

Russell B. Wine, of San Antonio, for appellee.

SMITH, Chief Justice.

In this suit brought by him, Paul D. Crawford was awarded a decree of divorce from his wife, Mary S. Crawford, to whom the custody of their two minor children was awarded. Mary S. Crawford has appealed from the decree of divorce.

The controlling question raised in the appeal is disclosed in appellant's bill of exception, duly approved by the trial judge, as follows:

"Be it remembered that on this the 13th day of March, 1944, came on to be heard the matter of the settling of the Statement of Facts in this cause, and it appearing to the Court that three days after the trial of this cause and the giving of the notice of appeal by defendant, to-wit: On January 18th, 1944, the defendant ordered from Mr. Henry L. Gazley, deceased, the Official Court Reporter of this Court a Statement of Facts in Question and Answer form, with the request that he prepare same at the earliest possible time, but before making and preparing same said Court Reporter died on or about the 26th day of January, 1944; that after his death the attorneys for defendant, in their endeavors to obtain a Statement of Facts herein, discovered that said Court Reporter had dictated prior to his death into a dictaphone some of the testimony adduced upon the trial of this cause, and that they had all of such said testimony, which only consisted of nine pages, run off, and that thereafterwards attorneys for defendant made diligent efforts to have various other reporters in this county read the notes of the said deceased court reporter, but, due to the fact that the deceased Court Reporter wrote a different system of shorthand than their own, they were unable to read such notes and defendant was unable to obtain any more of such testimony, and it further appearing to the Court that after it was discovered that such reporter's notes could not be read and a Statement of Facts obtained as were actually testified to by the witnesses, the Court was powerless to grant the defendant a new trial because she had at that time perfected her appeal of the case to the Fourth Supreme Judicial District of Texas sitting at San Antonio, by filing and having approved by the clerk her appeal bond herein, thus consequently depriving this Court of jurisdiction to grant defendant a new trial, and further that the defendant prepared her version of the Statement of Facts herein, the first nine pages of which consisted of the part so dictated by the deceased Court Reporter, as aforesaid, and presented same, both the original and duplicate, as her proposed Statement of Facts to counsel for plaintiff on February 16, 1944, and that same remained in the hands of counsel for plaintiff for a period of ten days, but that counsel for plaintiff refused to agree thereto, and further that, under such circumstances, it being the duty of the Court to prepare and file a Statement of Facts in the case, the Court thereupon prepared in original and duplicate form the Statement of Facts signed by him herein, but that attorneys for defendant refused, and did not agree thereto, and objected and excepted to such statement of Facts prepared by the Court on the ground that same was not in accordance with the facts as testified to by the witnesses upon the trial of the case, and thereupon asked and requested of the Court that the Statement of Facts prepared by defendant be and constitute the Statement of Facts in this cause, but the Court refused defendant's such request, and to which action and refusal of the Court thereto the defendant objected and excepted, and requested of the Court that her proposed Statement of Facts, both original and duplicate, so prepared by her, as aforesaid, be and the same constitute a part of this her Bill of Exception herein and a part of the record herein and it is therefore accordingly ordered, adjudged and decreed by the Court that the Statement of Facts so prepared by defendant, as aforesaid, be filed herein and same be and constitute a part of this her Bill of Exceptions and a part of the record herein."

The statement of facts made up by the trial judge and sent up with the record as the statement of facts in the case consists, first, of the nine pages of question and answer transcript of the testimony taken down in shorthand and dictated into a dictaphone by the official court reporter before his death, and, second, of ten pages oral testimony in narrative form. The composite statement of facts was prepared and certified by the trial judge as constituting "a substantially true and correct transcript, both in question and answer and in narrative form, of all the testimony adduced upon the trial of this cause." This statement of facts was prepared and certified after it was ascertained that only a partial question and answer transcript could be obtained and after appellant had tendered to appellee and the trial judge, which was by them rejected, a composite question and answer and narrative statement in like form and, as far as it went, in like substance as that certified and filed by the judge. Subsequently, appellant formally requested the trial judge to prepare and file his findings of fact and conclusions of law, which was done, and to which appellant made no specific objections, or requests for additional or different findings.

In her first point appellant asserts that because of the untimely death of the court reporter, "thereby rendering it physically impossible for her to obtain such statement of facts and her inability to procure same was brought about through no fault or negligence of herself or her attorneys, she is entitled, and it is within the power of the Court, to reverse the judgment from which she has appealed, for, without same, no adequate and authoritative review of the case can be made."

To support the point appellant cites and relies upon the Texas cases of Victory v. Hamilton, 127 Tex. 203, 91 S.W.2d 697, and Pacific Greyhound Lines v. Burgess, Tex.Civ.App., 118 S.W.2d 1100, writ refused, hereinafter adverted to. We overrule appellant's first point for reasons to be now stated.

The forms and methods of procuring statements of facts in civil actions are now prescribed in Rule 377, Vernon's Tex.Civ. Procedure, p. 367. The sources of the rule are Arts. 2238, 2239, R.S., as amended by Acts 1931, 42d Leg., 1st C.S., p. 75, Ch. 34, §§ 2, 3, Vernon's Ann.Civ.St. arts. 2238, 2239, which were superseded by the rule. Pertinent provisions of Rule 377 are as follows:

"Rule 377. Statement of Facts.

"(a) Testimony. The testimony of the witnesses need not be in narrative form but may be in question and answer form. A party may prepare and file with the clerk a condensed statement in narrative form of all or part of the testimony and deliver a true copy thereof to the opposing party or his counsel, and such opposing party, if dissatisfied with the narrative statement, may require the testimony in question and answer form to be substituted for all or part thereof. * * *

"(c) Promptly after notice of appeal is given and where a request is made of the official court reporter for the preparation of a transcript of all or any part of the evidence adduced on the trial of the case, or whenever, with or without such a request, a statement of facts is filed or offered for filing by appellant, the appellant shall deliver or mail to the appellee or his counsel and file with the clerk of the court a designation in writing of the portions of the evidence desired, and shall specify the portions desired * * * in question and answer form, if any, and the portions that are desired to be omitted. Within ten days thereafter any other party to the appeal may file a designation in writing of any additional portions of the evidence to be included, specifying the portions desired in narrative form, if any, and the portions desired in question and answer form, if any.

"(d) Approval of Trial Court Unnecessary. It shall be unnecessary for the statement of facts to be approved by the trial court or judge thereof when agreed to by the parties. If any difference arises as to whether the record truly discloses what occurred in the trial court, or if the opposing party fails to agree or to disagree within ten days after being furnished with a copy of the proposed statement of facts, the matter shall be submitted to and settled by the...