Howard v. Gulf, C. & S. F. Ry. Co.

• Decision Date: 01 March 1911
• Citation: 135 S.W. 707
• Court: Texas Court of Appeals
• Parties: HOWARD v. GULF, C. & S. F. RY. CO.

135 S.W. 707

HOWARD v. GULF, C. & S. F. RY. CO.

Court of Civil Appeals of Texas.

March 1, 1911.

Appeal from District Court, Montgomery County; L. B. Hightower, Judge.

Action by E. F. Howard against the Gulf, Colorado & Santa Fé Railway Company. From the judgment, plaintiff appeals. On appellee's motion to strike the statement of facts. Motion overruled.

F. J. Duff and W. N. Foster, for the motion. Nugent & McMahon, opposed.

KEY, C. J.

This case was tried in the district court of Montgomery county, and appealed to the Court of Civil Appeals for the Second district, and, by order of the Supreme Court, has been transferred to this court. After the case reached this court, appellee filed a motion to strike out the statement of facts for the following reasons: "Because said statement of facts was not filed in the trial court or with the clerk of the trial court within the time allowed by law and the orders of the court trying said cause, and in this connection the appellee upon information and belief states the following: That the time allowed for the filing of said statement of facts expired prior to the 18th day of April, 1910, to wit, on April 16, 1910; that said statement of facts was not handed or sent to the clerk of said court until April 18, 1910; that said clerk placed his file mark upon said statement of facts as of that date, April 18, 1910; that subsequent to thus filing said statement of facts the clerk of said court changed his file mark and made the same read April 14, 1910, which was not the true date when said statement of facts reached the clerk of said court or was filed with him; and in this connection the appellee refers the court to the file mark contained on the back of said statement of facts now on file with the record in this cause in this court, and to the certificate of the clerk of the trial court, which is hereto attached and made a part of this motion."

The motion is accompanied by and predicated upon the following official statement made by the district clerk of Montgomery county (caption omitted): "Appellee has shown to me the file mark on the statement of facts in this case, which file mark was made by me, calling my attention to the fact that the mark seems to have been one date originally, and then to have been changed to another, and asked for an explanation. The original file mark and the change were made by me, and I now certify that, according to my best recollection, the statement of facts was filed with me on the 18th day of April, 1910, and that I placed the date accordingly. I also changed the date to make it read April 14, 1910. It is my invariable custom to give a file paper the date it reaches my hands, that is, make the file show the date I receive the paper, either by same being handed to me or receiving the same from the post office, but I have on several occasions, upon request being made, made the file mark show a date anterior to the time of the actual filing; and it is my best recollection I did so in this instance. I further state that in this instance there would have been no occasion for me to have written on this statement of facts, April 18, 1910, and then to have changed the same to April 14, 1910, without I had been requested to do so by appellant's counsel, and to the best of my recollection the said statement of facts must have reached my hands on the 18th day of April, 1910, and while I cannot positively state that said date was changed to the 14th at the request of appellant's counsel, still my best recollection is that one of the counsel for appellant requested me to make such change, otherwise I would not have done so. I certify to the above under my hand and seal of the district court of Montgomery county, Texas. [Signed] Alf Morris, Jr., Clerk of the District Court of Montgomery County, Texas. [Seal.]"

The record shows that the 17th day of April, 1910, was the last day on which the statement of facts could properly have been filed. Appellant has filed an answer to the motion controverting the facts stated in the clerk's certificate. His answer contains affidavits made by both of his attorneys. One of the attorneys swears as follows: "My name is C. W. Nugent. I am a regularly licensed and practicing attorney of the state of Texas, and licensed to practice in the United States courts. I was leading counsel for the appellant, E. F. Howard, on the trial of his cause in the district court, and was assisted therein by my partner, Winston McMahon. I presented to Judge Hightower and had him make orders upon the...