Martin v. Martin

• Decision Date: 23 February 1921
• Docket Number: (No. 6313.)
• Citation: 229 S.W. 695
• Parties: MARTIN v. MARTIN et al.
• Court: Texas Court of Appeals

229 S.W. 695

MARTIN v. MARTIN et al.

(No. 6313.)

Court of Civil Appeals of Texas. Austin.

February 23, 1921.

Error from District Court, Coryell County; J. H. Arnold, Judge.

Suit for partition of real estate between T. R. Martin and Clark Martin and others. From the judgment, T. R. Martin brings error. Reversed and remanded.

Thurmon, Nicholson & Saxon, of Dallas, for plaintiff in error.

KEY, C. J.

This is a suit for the partition of real estate, wherein the plaintiff in error, being dissatisfied with the judgment, has brought the case to this court by writ of error, and has presented it upon two assignments.

The first assignment complains of the action of the trial court in refusing to grant plaintiff a continuance; but, as there is no statement of facts in the record, it is not made to appear that error was committed in that respect, and that assignment is overruled.

The other assignment complains of the action of the trial judge in refusing to prepare and file a statement of facts after the parties had failed to agree upon that subject. The final judgment was rendered on the 28th day of August, 1919, and 60 days from the rendition thereof was allowed in which to prepare and file a statement of facts and bills of exceptions. On November 1, 1919, application was made by plaintiff in error for additional time, and the same was granted by an order which reads as follows:

                  "Considering the foregoing petition, it is ordered
                that the defendant T. R. Martin be allowed
                an additional 30 days in which to prepare
                and file a statement of facts and bill of
                exception, making 90 days in all from the rendition
                of the judgment herein on the 30th day of
                August, 1919.       J. H. Arnold, Judge."
                

On November 22d another application for extension was presented to the judge, and he granted the same by the following order:

"Considering the foregoing petition, it is ordered that an additional time of 30 days be given to defendant T. R. Martin dating from December 6, 1919, or 120 days from the rendition of the judgment herein, for the court to prepare the bills of exceptions and statements of facts, all as prayed for according to law.

                                        "J. H. Arnold, Judge."
                

On the same day the judge approved three bills of exceptions presented by the plaintiff in error, and the latter presented to him a statement of facts, which he had prepared, which, after giving the style and number of the case, contained, among other things, the following stipulation:

"We, the parties of the above styled and numbered cause whose names are signed hereto, being all of the parties to this suit, hereby agree that the following is a true and correct statement of the facts in this cause."

Then followed what purported to be the testimony that was introduced, and it concluded as follows:

"The above statement of facts were presented to Messrs. Stinnett & Stinnett, attorneys for plaintiffs, and they refused to agree to same and it was impossible for the attorneys for plaintiffs and attorneys for defendant to agree on a statement of facts, and same were presented to the Honorable J. H. Arnold, judge of the district court of Coryell county, for the purpose of having him to prepare the statement of facts, and he stated he would not prepare same as the time to prepare same had expired. Lyle Saxon, Atty. for T. R. Martin, Defendant."

The trial judge made the following indorsement upon that document:

"November 22, 1919. Above and foregoing statement of facts presented to me on this date and same not agreed to by attorneys for plaintiff, and time long since having expired, I feel that I should not now be asked to file a statement of facts, and for that reason do not approve this statement of facts and refuse and decline to make one myself.

                             "J. H. Arnold, Judge Presiding."
                

A writ of error was sued out during the latter part of December, 1919, which was within six months from the date of the final judgment. Removal of a case from a trial court to an appellate court by writ of error is a method of appeal, and therefore article 2073, Vernon's Sayles' Ann. Civ. St. 1914, which authorized the trial judge to...