Dyche v. Simmons

• Decision Date: 08 January 1954
• Docket Number: No. 15472,15472
• Citation: 264 S.W.2d 208
• Parties: DYCHE v. SIMMONS.
• Court: Texas Court of Appeals

Page 208

264 S.W.2d 208

DYCHE v. SIMMONS.

No. 15472.

Court of Civil Appeals of Texas, Fort Worth.

Jan. 8, 1954.

Rehearing Denied Feb. 5, 1954.

Durward H. Dyche, Denton, for appellant.

Coleman & Whitten, Denton, for appellee.

MASSEY, Chief Justice.

Durward H. Dyche, as plaintiff, sued C. O. Simmons, as defendant, in the District Court of Denton County, Texas, for attorney's fees based on plaintiff's sworn account, and (in the alternative) in quantum meruit. Based upon a jury verdict on special issue, judgment in favor of the defendant was rendered by the court, from which judgment the plaintiff has appealed.

The appellee herein, defendant in the trial court, filed a motion to dismiss the appeal.

Motion to dismiss the appeal denied.

Judgment affirmed.

The District Court of denton County, Texas, is a trial court coming within the Special Practice Act, now embodied in T. R. C. P. 330 et seq., and is a court wherein motions for new trial as prerequisites to an appeal from a judgment based upon a jury verdict are required to be filed within ten days next subsequent to date of entry of judgment. The judgment in the case was rendered on January 16, 1953. A motion for new trial was filed on January 15th. For purposes of the appeal, the Original Motion for New Trial by appellant will be considered as having been filed on the same day but subsequent to entry of the judgment. T.R.C.P. 306c.

On or about February 13, 1953, an amended motion for new trial was filed with leave of the court, but in so far as any appeal might be considered, such amended motion must be disregarded since it was filed in excess of twenty days after date of the filing of the Original Motion. T. R. C. P. 5 and 330(k); A. F. Jones & Sons v. Republic Supply Co., Tex.Civ.App. Beaumont, 1951, 243 S.W.2d 196, affirmed in Tex. Sup., 246 S.W.2d 853; 6 S.W.Law Journal, p. 193 et seq.; Dallas Storage & Warehouse Co. v. Taylor, 1934, 124 Tex. 315, 77 S.W.2d 1031; Independent Life Ins. Co. of America v. Work, 1934, 124 Tex. 281, 77 S.W.2d 1036.

It appears that appellant filed his Appeal Bond February 20, 1953, which was within thirty days after the Original Motion for New Trial was overruled by operation of law on February 15, 1953. When he did this he perfected his appeal in so far as the trial court was concerned. T.R.C.P. 363.

Prior to date of receipt of a Transcript and Statement of Facts in this appellate court, we granted a motion of the appellant for an extension of time for the filing of the record. On the last day of the extended period granted, the Transcript and a Statement of Facts were received for filing by the clerk of this court.

As to the transcript so received, an examination of it revealed that same did not contain the judgment of the trial court, the motion for new trial and order of the court thereon (if any), the notice of appeal with the date of giving or filing same, nor any statement of the parties as to the matter to be included in the record. Under Rule 376, Texas Rules of Civil Procedure, the clerk of the trial court should include in a transcript these items we have set out as absent in the Transcript received by the court. No instrument in the Transcript explained an occasion for omission of such items.

In view of this state of the Transcript so received and of the apparent default on the part of the clerk of the trial court, this court upon its own motion and because of the items missing from the Transcript notified the attorney for the appellant and the attorney for the appellee in the premises, under the provisions of T.R.C.P. 388, to the end that they might take steps to amend the record in question if such could be done, and allowed a reasonable time for such to be done. The order entered was to the effect that for the purposes of such correction of the Transcript to show jurisdiction of the appeal in the Court of Civil Appeals, the time granted by way of extension was to date of June 16, 1953. Both the Transcript and the Statement of Facts received by the clerk of this court were held by the clerk for filing, subject to demonstration of appellant's right to have same filed by the filing of a supplemental transcript inclusive of the missing items. Of course the tendered Statement of Facts could not be filed until such was supported by a constructively 'first filed' Transcript. In this instance reference to a Transcript so filed obviously was necessary in order to determine whether the tendered Statement of Facts should or should not be filed.

On June 12, 1953, there was received for filing by the clerk of this court a 'First Supplemental Transcript' by way of transmittal from the sttorney for the appellee, who was the defendant in the trial court. This Supplemental Transcript contained the designation made by such appellee, as the defendant in the trial court, of matter designated by such defendant to be included in the Statement of Facts. Said designation was for a full and complete statement of facts in question and answer from. It was addressed to the court reporter and filed with the clerk of the court as is the contemplation of the Rules of Civil Procedure. It is to be noted that it is the only such designation made by either party to the appeal apparent from the Original and Supplementary Transcripts.

Also, and on the same day, there was received from the appellee a Motion to Dismiss the Appeal for the reason that the appellant had not, at the time he first requested a transcript, requested the clerk of the trial court to put in the Transcript the items we had noted as missing and because of which we had granted the extension to June 16th for amendment of the record in correction. Appellee likewise predicated his Motion to Dismiss the Appeal on the ground that the appellant had not requested any statement of facts at all until so much time had passed after judgment and time related to the motion for new trial that the court reporter did not have time to prepare the statement of facts within a proper time for an ordinary appeal, and for the further reason that the appellant had refused to pay the court reporter for the full and complete statement of facts designated by appellee, but agreed only to pay for such character of statement of facts that the appellant had designated as desired by him on the appeal. The appellee fortified his Motion by attaching the verified affidavit of the court reporter relating to such matters. Alternative to the motion as a Motion to Dismiss the Appeal, the appellee moved that this court refuse to file the Statement of Facts tendered by the appellant because it did not comply with requirements of his designation as to matters included therein, had never been agreed to by him as a Statement of Facts in the case, and was not a Statement of Facts certified to and meeting the requisites of a Statement of Facts in the cause, further moving that any statement of facts to be considered upon the appeal must be at least such as amounted to a full and complete Statement of Facts.

The appellant did file within time authorized by this court a further Supplemental Transcript containing instruments showing compliance with requisites of T.R.C.P. 388, and the originally tendered Transcript and the two Supplements thereto were ordered filed. The Statement of Facts tendered was not filed. The filing of a transcript is a function necessary of performance as one of the steps of procedure in appeal and if it appears from its face that an appeal has been duly perfected, then it may be filed in the court of civil appeals and even dated back to the date it was originally received by the clerk in cases where amendment is required by an appellate court as a predicate to its filing. The appeal does not necessarily depend upon a filing of a Statement of Facts. A Statement of Facts is only requisite when it is necessary to the appeal. If none is filed the events associated with the introduction of the evidence will be deemed to have been proper in all respects, and the evidence will be considered to fully support the judgment entered. If no Statement of Facts is offered or if the filing of a Statement of Facts is not allowed, then there is nothing in the record which supports any point on appeal necessary to be determined by a reference to a Statement of Facts.

Of course, in the instant case we could not determine whether the Statement of Facts should be filed until a satisfactory Transcript was presented and allowed to be filed. Then, by reference to information in the Transcript itself, as well as by reference to the matters within the authentication and agreement part of the Statement of Facts itself it would be determined whether it should be filed. Upon our finally filing the transcript and supplements as the Transcript on the appeal, it was apparent therefrom and from the tendered Statement of Facts that the appellee had not by any action-of either commission or omission-waived any of the requirements of law incumbent upon an appellant and applicable to warrant a delayed filing of a statement of facts, nor had the prerequisties of T.R.C.P. 377 been complied with as to the Statement of Facts tendered, irrespective of delay. Appellee had not signed or otherwise agreed that the Statement of Facts tendered might be considered as the Statement of Facts on the appeal. On the contrary, and prior to correction of the Transcript tendered by the Supplementary Transcript tendered in correction, the appellee filed his Motion heretofore discussed, in which he objected to our filing the Statement of Facts tendered because it did not comply with his request for a full and complete Statement of Facts as evidenced by the Supplementary Transcript.

Not only did it appear from the court reporter's own certificate that it was not an agreed Statement of Facts, but it likewise appeared that it was not a full and complete Statement of Facts, but instead only a partial statement. It likewise appeared that it...