Dewees v. Hudgeons

• Decision Date: 31 December 1846
• Citation: 1 Tex. 192
• Parties: WM. B. DEWEES v. WM. HUDGEONS
• Court: Texas Supreme Court

1 Tex. 192

WM. B. DEWEES

v.WM. HUDGEONS

Supreme Court of Texas.

December Term, 1846.

Appeal from Colorado County.

A power in the supreme court to grant relief must either be expressly conferred by law or it must result from those powers necessarily incident to the exercise of its appellate jurisdiction. The mere absence of any other remedy confers no such power.

A motion made more than five years after the rendition of the judgment in the court below to remand the cause for a new trial, because the statement of facts was not sent up in the transcript of the record and has been lost, comes too late. If under any circumstances such reason would be sufficient to authorize the remanding of the cause, it would only be when the party who seeks to avail himself of it had used proper diligence.

The omission of the judge a quo, to give a charge not asked by the party, is not error; nor is it error to charge the jury that if a party contract in his own name he is liable, but not liable if he contract in the character of commissioner or agent for the public.

When there is no statement of facts in the record, “nothing can be assigned as error of law which could have been cured by evidence legally given at the trial.” Until the contrary be shown, the appellate court is bound to presume that the evidence was sufficient to sustain the judgment.

This suit was brought by the appellee against the appellant, to recover five hundred dollars, alleged to be due for furnishing materials and building a house in the town of Columbus, at the special instance and request of defendant.

The defendant pleaded the general issue, a non joinder of parties, and specially, that the building contract in respect to which the suit was brought was entered into by the defendant and others, as commissioners, acting for and on behalf of the citizens of the town of Columbus and county of Colorado, with the plaintiff and one Hicks, to build a jail in the town of Columbus. The defendant further alleged that the plaintiff and Hicks contracted to build the jail upon the faith of a certain fund guarantied by the subscription of said citizens and from which fund alone they were to receive payment for the work. He also denied that the plaintiff had complied with his contract.

There is in the record a paper which was filed in the cause purporting to be a contract entered into on the 21st of April, 1838, between William B. Dewees, Stephen Townsend and Colon De Bland, as commissioners to superintend the building of a jail in said county on the one part, and William Hudgeons and Stephen Hicks, on the other part, who contracted to build the jail for the sum of $875, which the party of the first part covenanted to pay them.

There is also in the record a paper purporting to be a subscription list, and by which the subscribers agreed to pay the sums set opposite their names respectively for building a jail. This paper bears date April 16, 1838, but does not specify to whom the money was to be paid. The amount subscribed was $355.

It is not shown by the record whether these papers were used at the trial or not, farther than they appear to have been filed among the papers in the cause and the apparent reference which the judge made to them in his charge. That charge was, “If the jury believe that the defendant in his individual capacity assumed to pay the plaintiff for his work and labor on the jail house, they will estimate the amount of such work and labor and find the same for the plaintiff; but if they shall believe the defendant only undertook as one of the commissioners of certain subscribers or of the county, to pay the plaintiff for his work and labor, they will find for the defendant.”

There was a verdict for the plaintiff for $350, which the court set aside for supposed misconduct on the part of the jury. On the second trial there was a verdict and judgment for the plaintiff for $460, from which the defendant appealed.

Fischer, for appellant, moved that the cause be remanded and a new trial ordered because the statement of facts had not been sent up in the record and having been lost in the court below it could not be had by certiorari. He cited as authorities in support of the motion, 9 Martin, 93, and 5 Martin (N. S.), 100.

Gillespie, for appellee.

WHEELER, J.

The appellee sued the appellant upon an alleged contract that, in consideration of materials furnished and labor done by the plaintiff at the request of the defendant, he (the defendant) promised the plaintiff to pay him therefor the sum of $500.

The petition seems to have been framed in imitation of a common law declaration in assumpsit, embracing three counts: the indebitatus assumpsit, quantum meruit and account stated. But as no exception has been taken to its legal sufficiency, and as it will not therefore become necessary to institute any inquiry upon that subject, its contents need not be stated.

The answer contains a general denial and also sets up new affirmative matter in avoidance; and in support of such new matter certain writings, purporting to be a subscription and contract for the erection of a jail, are filed as a part of the answer.

There was a verdict for the plaintiff, which was set aside, a new trial granted and a second verdict and judgment for the plaintiff, from which the defendant appealed.

There is in the record no statement of facts agreed or certified as the facts of the case.

At the present term a motion is made by the appellant to remand the cause for a new trial, grounded on the affidavit of the district judge and one of the attorneys for the appellant, setting forth that a statement of facts with the charge of the judge were made out at the trial but have since been lost.

We have considered the motion in connection with the record. In its determination two question are presented.

1. Are we authorized by law to remand a cause upon an application founded on matters not disclosed by the record?

2. Is the present a case proper for the exercise of such authority?

In support of the motion we are referred to two cases decided in Louisiana. In one of these, Watson v. Clare, 5 Mart. (N. S.) 100, Martin J. says: “As the plaintiffs find themselves without their fault unable to place the merits of the case before us, we think they are entitled to relief, and we cannot afford it otherwise than by remanding the cause for a new trial, as we are authorized to do whenever justice cannot be attained otherwise;” and he cites for this opinion, Porter v. Dugat, 9 Mart. 92. It does not, however, very clearly appear from the report of the case, in what manner the case was presented to the court;...