Ferris Press Brick Co. v. Hawkins

• Decision Date: 06 February 1909
• Parties: FERRIS PRESS BRICK CO. v. HAWKINS.
• Court: Texas Court of Appeals

116 S.W. 80

FERRIS PRESS BRICK CO. v. HAWKINS.

Court of Civil Appeals of Texas.

February 6, 1909.

Original proceedings for mandamus by the Ferris Press Brick Company against F. L. Hawkins. Writ issued.

G. C. Groce, for relator. W. M. Tidwell and Farrar & McRae, for respondent.

TALBOT, J.

This is an original proceeding in this court by the relator, Ferris Press Brick Company, for a peremptory writ of mandamus to compel Hon. F. L. Hawkins, judge of the Fortieth judicial district of Texas, to approve and certify a statement of facts tendered him by relator, or to make, sign, and file a statement of facts in the case of L. C. Thompson et al v. Ferris Press Brick Company, lately pending in the district court of Ellis county. Upon the presentation of relator's petition the clerk of this court was directed to issue notice to the respondent, Judge Hawkins, to appear January 22, 1909, and show cause why the writ should not issue. Respondent filed an answer to relator's petition, and on said 22d day of January, 1909, a hearing was had, and the matter involved submitted for our adjudication. So far as is necessary to state, it was alleged and shown that at the September term, 1908, of the district court of said Ellis county, there was pending on the civil docket of said court a cause, No. 7,388, styled "L. C. Thompson et al. v. Ferris Press Brick Company," wherein L. C. Thompson and her three minor children, as plaintiffs—said minors suing by their said mother as next friend—sought to recover of plaintiff herein, defendant in said suit, damages for the death of J. W. Thompson, husband of said L. C. Thompson, and father of said minor plaintiffs, it being alleged and claimed that said J. W. Thompson was, at the time of receiving injuries which resulted in his death, an employé of plaintiff, and that the injuries which caused his death resulted from certain alleged acts and omissions of plaintiff which were charged to have been negligence as to said J. W. Thompson. A trial was had in said cause at said September term, 1908, of said district court of Ellis county, which on, to wit, the 28th day of November, 1908, resulted in a judgment for plaintiffs for $5,000, apportioned $2,000 to said L. C. Thompson and $1,000 to each of the minor children. A motion for a new trial was filed in said cause, which was not acted upon until November 28, 1908, when it was by the court overruled, and notice of appeal was given to this court, and 30 days after the adjournment of that term of said district court was allowed the parties within which to make up and file a statement of facts in said cause, and the appeal was duly perfected by filing the necessary bond. Said Fortieth judicial district is one in which there is an official stenographer, who acted on the trial of said cause No. 7,388, and within a few days after the judgment in said cause and sometime before the motion for a new trial was acted on, counsel for the plaintiff herein requested said stenographer to make out and furnish, as soon as he reasonably could, a transcript of his notes of the testimony in said cause, in question and answer form, which said stenographer promised to do, and on several occasions afterwards, during the term of said district court, like requests were made by said attorney of said stenographer, who on each occasion assured him that the requested transcript would be seasonably furnished. Counsel requested of the stenographer a question and answer transcript, with the view of preparing a statement of facts himself and reducing the material evidence in the case to the smallest proper compass. The term of the district court of Ellis county, Tex., at which said cause was tried, finally adjourned on December 5, 1908, and up to that time no transcript of the evidence in said cause had been furnished by the stenographer to counsel for this plaintiff, and said transcript was not completely furnished said counsel until about the 19th day of December, 1908, and about the 21st of December counsel began the preparation of statement of facts in said cause. On December 29, 1908, counsel for the plaintiff herein delivered to one of the counsel for the plaintiffs in said cause No. 7,388 an installment of 19 pages of the statement of facts being prepared by him. On the 30th day of December, 1908, another installment of the statement of facts was delivered to counsel for the plaintiffs in said cause No. 7,388, and the third and last installment on January 1, 1909, the whole covering 37 pages of typewritten matter. When the last installment of the statement of facts prepared by counsel for the plaintiff herein was tendered, for the first time it was suggested that such statement of facts had not been furnished within 15 days from the adjournment of court. Because of this intimation, counsel for this plaintiff, on January 1, 1909, furnished the Hon. F. L. Hawkins, judge of the Fortieth judicial district of Texas, a duplicate of the statement of facts which he had prepared and which was then in the hands of opposing counsel, and explained the situation to said judge, and that it was possible that opposing counsel, would refuse to reach an agreement, and he was requested to read said statement in full in order to familiarize himself therewith, and to determine whether it was a fair statement of facts with a view to his action in certifying a statement in case of disagreement.

After such duplicate was furnished the judge, counsel representing the plaintiffs in cause No. 7,388 also undertook to prepare and have ready to submit to the judge before the time for filing the same expired a statement of facts, and while so engaged and about 2 o'clock p. m., January 3, 1909, counsel for the defendant in said cause No. 7,388, and for the plaintiffs in this proceeding, called upon them and asked if he thought there was any probability that he would have his statement of facts prepared to submit to the district judge within the time limit for filing a statement of facts, which limit expired at midnight on January 4, 1909. To this counsel for the plaintiffs in cause No. 7,388 replied that he did not know, that he was doing the best he could; and counsel for said defendant, thinking that counsel for the plaintiffs was progressing so slowly in the preparation of his statement of facts, demanded to know whether or not it was the intention of counsel for the plaintiffs to agree or attempt to agree to the statement of facts prepared by him. Whereupon counsel for the plaintiffs in cause No. 7,388 wrote, signed, and handed to counsel for said defendant in said cause the following: "This statement was first presented to counsel for plaintiff by counsel for defendant as follows: Pages 1 to 19, inclusive, on December 29th, 1908, pages 20 to 27, inclusive, on December 30th, 1908, and remainder from pages 28 to 37, inclusive, on Jan. 1st, 1909, which after careful examination by counsel for plaintiff we cannot agree to same as being a full and correct statement of the facts adduced on trial. This January 3rd, 1909, at 2:00 o'clock p. m. W. M. Tidwell, Atty. for Plaintiffs."

When the above instrument was handed counsel for the plaintiff herein, he proceeded to the home of respondent, Hon. F. L. Hawkins, and, after having acquainted him with what had occurred between counsel with reference to the statement of facts, tendered respondent his statement, together with the stenographer's report, and so much of the statement as counsel for the defendant had prepared, and requested that he approve such statement or make and file one himself. After consultation, respondent made and appended to the draft of statement of facts so tendered him his memoranda in writing as follows: "The foregoing statement of facts was handed me...