Mayo v. Goldman
| Decision Date | 31 October 1906 |
| Parties | MAYO v. GOLDMAN. |
| Court | Texas Court of Appeals |
Appeal from District Court, Lamar County; T. D. Montrose, Judge.
Action by Homer P. Mayo against Abe Goldman. From a judgment for defendant, plaintiff appeals. Reversed and remanded.
Dudley & Dudley and E. P. Scott, for appellant. Moore, Park & Birmingham, for appellee.
This is an action brought in the court below by the appellant for damages on account of an alleged slander. There was a trial before a jury, which resulted in a verdict and judgment in favor of appellee. The paper embraced in the record, and designated as the "statement of facts" in the case, is not approved by the trial judge, and has the following indorsement by such judge thereon:
The caption of the transcript shows that the term of court at which the trial was had adjourned on the 27th day of September, 1905, and that the Honorable T. D. Montrose, judge of the Sixty-Second judicial district, presided. In the transcript, copied immediately after the paper above mentioned, are affidavits of the attorneys of appellant, and the originals of these affidavits are filed with the transcript of the record in this cause. These affidavits show that the statement of fact copied in the transcript was prepared by appellant's counsel and delivered to counsel for appellee on the morning of the 11th October, 1905, with the request, in effect, that they examine same, and agree or disagree to same at once, and inform appellant's counsel of their conclusion; that said statement of facts was returned to one of appellant's counsel on the 14th October, 1905, about 11 o'clock, by appellee's counsel, with the statement that they could not agree to same, and appellant's counsel up to this time had heard no intimation that appellee or his counsel could not agree to the correctness of said statement of facts; that on the 16th October, 1905, one of appellant's counsel took said statement of facts to Cooper, Tex., where the judge who tried the case was holding court, and at 7:22 o'clock p. m. presented same to him for examination and approval, which he declined, for the reasons indorsed by him on said statement, which indorsement is quoted above; that the statement approved by the judge and forwarded by mail to appellee's counsel reached Paris about 6 o'clock p. m. on the 16th day of October, 1905. Appellee has filed with the record the affidavit of the assistant postmaster at Paris, Tex., showing that on the 16th and 17th days of October, 1905, the free delivery mail service was in force and operation in the city of Paris, Tex., and that all mail arriving at the post office in said city after the hour of 6 o'clock p. m. on said dates would not be delivered until the morning of the next succeeding day. The affidavit of appellee's counsel filed with the record shows that the statement approved by the judge was received by him from the free delivery mail carrier at the office of appellee's counsel at 9 o'clock a. m., the 17th October, 1905, and the envelope in which said statement was contained is attached to said affidavit and sent up with the record, and the stamp of the receiving office on the back thereof shows that it was received at the post office at Paris, Tex., at 8 o'clock p. m., October 16, 1905.
According to the record, the trial court adjourned on the 27th September, 1905, and there was an order entered allowing 20 days from the date of adjournment within which to prepare and have filed a statement of the facts in the case. The 20 days did not expire...
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Mayo v. Goldman
...against Abe Goldman. Judgment for defendant, and plaintiff appeals. Reversed and cause remanded for a new trial. See, also, 44 Tex. Civ. App. 80, 97 S. W. 1061. Dudley & Dudley and B. B. Sturgeon, for appellant. Moore & Park, for WILLSON, C. J. Appellee was the president and manager of the ......
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McWilliams v. Ft. Stockton Irrigated Lands Co.
...of the court or to the admissibility of evidence, and they cannot be considered in the absence of statement of facts. Mayo v. Goldman, 44 Tex. Civ. App. 80, 97 S. W. 1061; Boyette v. Glass, 140 S. W. There being no fundamental error apparent upon the face of the record, the cause must be af......
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Albers v. Roberts
...and therefore cannot be considered by this court in the absence of a statement of facts in the record. In the case of Mayo v. Goldman, 44 Tex. Civ. App. 80, 97 S. W. 1061, the court holds that errors assigned which relate to the charge of the court cannot be considered in the absence of a s......