Johnson v. Erado

• Decision Date: 01 March 1899
• Citation: Johnson v. Erado, 50 S.W. 139 (Tex. App. 1899)
• Parties: JOHNSON v. ERADO et ux.
• Court: Texas Court of Appeals

50 S.W. 139

JOHNSON v. ERADO et ux.

Court of Civil Appeals of Texas.

March 1, 1899.

Error from Galveston county court; M. M. Mann, Judge.

Action by F. Erado and Jane Erado against W. R. Johnson, administrator of Julia Conrad. Judgment for plaintiffs. Defendant brings error. Affirmed.

S. S. Hanscom, for plaintiff in error. Jas. B. & Chas. J. Stubbs, for defendants in error.

FLY, J.

This suit was instituted by F. Erado and Jane Erado to recover of appellant, as administrator of the estate of Julia Conrad. deceased, the sum of $250. A trial by jury resulted in a verdict and judgment for the amount claimed. The case was tried on November 29, 1897, a motion for a new trial being filed the next day, and overruled on December 16, 1897; and the statement of facts, in which were embodied several bills of exception, was not filed until January 15, 1898. Appellees have filed a motion to strike out the bills of exception because not filed within 10 days from the time the motion for new trial was overruled. In answer to the motion, appellant has filed affidavits of his counsel and the county judge who tried the case to the effect that on December 19, 1897, the latter, without the knowledge of appellant, left the state of Texas, and went to the city of New York, where he remained until in January, 1898, and that his whereabouts were not known to appellant or his counsel. It was further shown that a statement of facts was presented within 10 days from the time the motion for new trial was overruled, and presented to the counsel for appellee, who refused to sign it, but prepared another statement which, together with the statement prepared by appellant, was presented to the county judge upon his return from New York, who prepared the statement of facts contained in the transcript. We conclude that appellant did...