Holman v. Britton

• Decision Date: 31 December 1847
• Citation: Holman v. Britton, 2 Tex. 297 (Tex. 1847)
• Parties: JAMES HOLMAN v. BENJAMIN L. BRITTON
• Court: Texas Supreme Court

2 Tex. 297

JAMES HOLMAN

v.BENJAMIN L. BRITTON

Supreme Court of Texas.

December Term, 1847.

Appeal from Lamar County.

Where none of the evidence adduced upon the trial of a cause is sent up in the record, and the charge of the court below (which has been excepted to) relates to and has a bearing upon facts which could be shown only by the evidence, it is impossible to decide whether such charge had any influence on the issue between the parties. This can be ascertained only by the application of the charge to the facts actually adduced on the trial. [ Ante, 284; post, 305; 4 Tex. 235;11 Tex. 649;16 Tex. 335, 563;18 Tex. 616;23 Tex. 441.]

In such a case, the facts being embodied in the record, the cause stands in the appellate court as if either no evidence, or such only as authorized the verdict, had been adduced, and the charge excepted to must be regarded as an abstract proposition unconnected with the case or with the issue, and as not affecting the correctness of the judgment.

Every reasonable intendment should be made in favor of the correctness of a judgment.

The appellant, the plaintiff in the court below, prayed for an injunction to restrain execution on a judgment previously confessed by him, on the ground that the execution had been issued in violation of an agreement between the attorney of the defendant below, appellee here, and himself, made at the time of the said confession of judgment.

The injunction granted was dissolved on the coming in of the answer, and on the final hearing the jury found for the defendant.

The record contains no statement of facts. The following bill of exceptions alone appears, to wit: “Be it remembered that at the trial of this cause the judge charged the jury that under the pleading in the case substantial proof of the contract between Holman and the attorney of Britton was not sufficient, but that the contract must be proven literally as alleged in the petition, to which opinion of the court the plaintiff excepts.

(Signed) “JOHN T. MILLS, District Judge.”

Gillespie, for appellant, admitted as correct the general doctrine that every presumption is to be indulged in favor of the verdict, and that where a charge of the court is complained of, it must affirmatively be shown not only to be wrong, but that it produced the result complained of. He contended, however, that the charge of the court was clearly wrong in this case; that this was not an ordinary suit by petition and answer, but a proceeding in chancery by a bill for an injunction, sworn to, with exhibits attached; which was demurred to and answered; the injunction dissolved and the bill retained and case submitted on bill, answer and exhibits. That in such cases the bill and exhibits were some proof, and to all facts not directly responded to, full proof.

Morrill, for appellee. As the proof and statement of facts were not sent up, and as this court cannot know that the charge complained of, even if erroneous in every possible supposed case, was the cause of the verdict given; and as this court cannot say that a different verdict and judgment would have been rendered if the charge had not been given, the judgment cannot therefore be reversed.

The judgment of the court below will not be set aside for erroneous instructions unless the bill of exceptions shows the evidence upon which the instructions were based. Samuel v. Withers, 9 Missouri, 166;Watson v. Brown, 14 Ohio, 473.

In this case the members of the court delivered separate opinions.

Mr. Chief Justice HEMPHILL.

There is but one exception sent up with the record, and that was to the charge of the judge that under the pleadings in the case substantial proof of the contract between Holman and Amos Morrill, attorney of Britton, was not sufficient, but that the contract must be proven literally as alleged in the petition.

There is no statement of facts sent up with the record, and the instruction relating to and bearing on facts which could be shown only by evidence, it is impossible to decide whether the instruction had any influence on the issue between the parties.

This could be ascertained only by the application of the instruction to the facts actually adduced on the trial. The proof may have been wholly insufficient to establish the allegations of the petition or to authorize the jury in finding a different verdict, and, consequently, the instruction could not have operated any actual injury to the plaintiff. The facts not being embodied in the record, the case stands here as if either no evidence had been adduced, or such only as authorized the verdict; and, in either event in this case, the charge must be regarded as an abstract proposition, unconnected with the case or with the issue, as affected by the evidence which may have been adduced before the jury.

To reverse a judgment it is not sufficient that there may have been error in the opinion of the court on an immaterial point or one extraneous to the issue, or the bearing of which on the determination of the court below cannot be ascertained from facts which are made to appear from the record.

There must be some possible injury resulting from the erroneous opinion, before the court is authorized to reverse a judgment; and this possibility is to be ascertained in this case alone by the application of the charge to the evidence; and this we are unable to do from there being no evidence presented in the record.

Every reasonable intendment should be made in favor of the correctness of a judgment, and our jurisdiction can be only appropriately exercised in redressing parties really aggrieved by the decisions of the lower court. And it is the duty of the appellant to show, from the record, that the act of the court alleged to be erroneous operated by possibility to the prejudice of his rights. This, as we have before said, could only be shown, under the charge which was given, from the facts to which it was applied; and these not being embodied in the record, we cannot say that there was error in the judgment of the court below.

It is ordered, adjudged and decreed that the same be affirmed.

Vide Preston v. Harvey, 2 Hen. & Munf. 67;Stephens and Everett v. The State of Ohio, 14 Ohio, 390;Watson v. Brown and Fuller, 14 Id. 480;Cresurger v. Lessee of Welch, 15 Id. 190;Samuel v. Withers and Bristow, 9 Missouri, 167.

Mr. Justice LIPSCOMB.

In this case it appears to me that the charge of the judge, as presented by the bill of exceptions, was wrong, and that the record will show that it was not an abstract opinion of the judge, irrelevant to the matter at issue before the jury. Were it so, I would fully assent to the decision that such abstractions cannot properly be the subject of revision in this court. It is true that there is no statement of the facts sent up with the record; but I hold, that when the law is given in charge by the judge to the jury, if any part of the record will raise a reasonable presumption that the charge had a relation to, and an influence on, the subject of inquiry before the jury, such charge is fairly before us for revision. I believe the true distinction to be this: if the court is asked to give a particular charge, and refuses to give it, the party excepting should show the relevancy of such charge in his exceptions. If he does not, the appellate court...