Lockett v. Schurenberg

• Decision Date: 22 January 1884
• Docket Number: Case No. 1644.
• Citation: 60 Tex. 610
• Parties: L. J. LOCKETT ET AL. v. LOUISA SCHURENBERG.
• Court: Texas Supreme Court

60 Tex. 610

L. J. LOCKETT ET AL.

v.LOUISA SCHURENBERG.

Case No. 1644.

Supreme Court of Texas.

Jan. 22, 1884.

APPEAL from Washington. Tried below before the Hon. I. B. McFarland.

The case is stated in the opinion.

C. C. Garrett and Sayles & Bassett, for appellants, filed an exhaustive brief, covering the various assignments of error. Their citations of authority, in view of the points on which the following opinion was based, are omitted.

STAYTON, ASSOCIATE JUSTICE.

The first, second and fourth assignments of error relate to the giving and refusing to give charges. These assignments cannot be considered in the absence of a statement of facts. Flanagan v. Ward, 12 Tex., 209;Cannovan v. Thompson, 12 Tex., 248;McMahan v. Rice, 16 Tex., 339;Hutchins v. Wade, 20 Tex., 9;Fulgham v. Bendy, 23 Tex., 64;Birge v. Wanhop, 23 Tex., 441;Smith v. Tucker, 25 Tex., 594;Frost v. Frost, 45 Tex., 325;Ross v. McGowen, 58 Tex., 603.

This cause was tried at a term of the district court for Washington county which ended on the 28th day of April, 1883, and the statement, which purports to be a statement of facts, which was made up by the judge who tried the cause, counsel having failed to agree, was not signed by him until the 7th of May following. It is not clear from the transcript when it was filed, but no order of the court appears in the transcript giving time after the adjournment within which to file a statement of facts.

It has been more than once decided, that, unless such order appears in the transcript, a statement of facts filed after the term will not be recognized. McGuire v. Newbill, 58 Tex., 314;Ross v. McGowen, 58 Tex., 603; T. & P. R'y Co. v. McAllister, 59 Tex., 362; Trewitt v. Blundell, 59 Tex., 253.

A part of the third assignment of error also relates to the refusing of the court to give a charge asked by the appellant. This, for the reasons before indicated, cannot be considered.

The residue of the third assignment of error relates to the action of the court in permitting certain testimony to be introduced over the objection of the appellant. No bill of exception was taken to this action of the court during the term, and it only appears that the evidence was objected to, by notice of the objection and the grounds thereof set out in the paper which purports to be a statement of facts, which, as before said, was not filed until after the term.

The statute provides that: “It shall be the duty of the party taking any bill of exceptions to reduce the same to writing, and present the same to the judge for his allowance and signature during the term, and within ten days after the conclusion of the trial.” R. S., 1363.

“It shall be the duty of the judge to submit such bill of exceptions to the adverse party or his counsel, if in attendance on the court, and if the same is found to be correct, it shall be signed by the judge without delay and filed with the clerk during the term.” R. S., 1364.

Rule 60 for the district courts declares that bills of exceptions must be made out and signed during the term. The statutes and rules evidently contemplate that bills of exception must be signed and filed during the term, and while, under rule 56, exceptions to evidence admitted over objection may be embraced in a statement of facts in connection with the evidence, yet, unless such statement is signed and filed within the term, exceptions attempted to be thus preserved cannot be recognized; and it would seem that when bills of exception are thus taken the statement of facts containing them should also be presented to the judge within ten days after the conclusion of the trial. S. & E. T. R'y Co. v. Joachimi, 58 Tex., 454;Blum v. Schram & Co., 58 Tex., 528; T. & P. R'y Co. v. McAllister, 59 Tex., 362; Farrar v. Bates, 55 Tex., 197.

The seventh assignment of error is to the effect that the court erred in excluding a map of the city of Brenham, which was offered in connection with the evidence of a witness, for the purpose of showing the true locality and size of the two lots for the recovery of which this suit was brought. The action was, in form, trespass to try title, but the real question seems to have been one of boundary, the parties owning contiguous property.

The defenses were plea of not guilty and the statutes of limitation of three, five and ten years.

To the ruling of the court excluding the map, which, under the order of the court, is sent up with the reeord, a bill of exceptions was properly taken and filed, and it contains the following statements:

“On the trial the plaintiffs offered in evidence the map on file in this cause and attached to the deposition of O. H. P. Garrett, purporting to be a map of the original town of Brenham, and in connection therewith the testimony of said Garrett, as follows: ‘I am by profession a surveyor; the map offered in evidence is a map of the original town plot of Brenham. The town of Brenham was laid off by me in the year 1844. The map offered in evidence is not the original map as made by me. I do not know where the original is. It was delivered by me to the town commissioners and by them filed in the county clerk's office, where I last saw it. It is not now in the county clerk's office, that I can find, and has not been there for a good many years. I have looked for it often. The map offered in evidence is a copy protracted from the original map by Mr. Parker, who was my deputy when I was county surveyor. I needed one and Mr. Parker made it. It was made between us in the office, and I may say I saw some of the lines drawn. This map has been in use since 1850. (The trial took place in the spring of 1883.) All the town maps now in existence have been protracted from it. I think the map is a correct copy from the original, from my recollection as I ran off the town. It will assist me in fixing the location and size of the lots originally laid off.'

On cross-examination the witness stated that Parker made the map. ‘He and I both used it. I am certain that I saw him at work on it. The map went into Parker's custody when he was elected county surveyor, and came again into my possession on my re-election at his death. It was in his desk at McIntyre's, where he boarded, and was turned over to me with other papers by McIntyre, who had the key to the desk, and had been also a sort of deputy surveyor. I was familiar with the map when it was turned over to me by McIntyre. Having laid off the town, I think the map is a copy of the original map. I have never had occasion to test the accuracy of the lines as drawn by measurement. But the plot is correct. The map offered shows a street through the Ewing property, which may have been a mistake.'

On re-examination the witness stated: ‘We used the map before and after the death of Parker. To test the map would be to resurvey the town. According to my best recollection, this is a true copy of the original map.'

It was admitted by the defendants that the original map referred to was not to be found in the county clerk's office or elsewhere, and that it was lost or destroyed.

The court asked the witness if he had compared the map offered with the original, to which he answered he had not after it was made, so far as he could remember.

The defendant objected to the introduction of the map in evidence, on the ground that it was not shown to be a true copy of the original. The objection was sustained, and the map was excluded.”

In the condition of the record as presented, it becomes necessary to inquire whether the action of the court in excluding the map can be revised; and with a view to the determination of that question a review of the most important and direct cases upon the subject will be made.

In Harvey v. Hill, 7 Tex., 591, it was held in a suit by a husband, as the administrator of his wife's estate, to recover land from their vendee which they had together conveyed to him, that this court would revise the ruling of the court below in excluding the deed by which the husband and wife had conveyed the land to the defendant, although...