Mills v. Paul

• Decision Date: 02 November 1892
• Citation: 23 S.W. 189
• Parties: MILLS et al. v. PAUL et al.
• Court: Texas Court of Appeals

23 S.W. 189

MILLS et al. v. PAUL et al.

Court of Civil Appeals of Texas.

November 2, 1892.

Appeal from district court, El Paso county.

Action by Anson Mills and others against George Paul and others. Judgment for plaintiffs. Defendants appeal. Plaintiffs move to strike the transcript from the files. Motion granted, and appeal dismissed.

M. W. Stanton, for appellants. Patterson & Buckler, for appellees.

KEY, J.

The appellees in this case have filed a motion seeking to strike from the files and have this court refuse to consider the transcript filed by the appellants, upon the grounds (1) that the record shows four separate and distinct judgments of four separate and distinct cases; (2) because the caption does not refer to or name either one of the causes the record of which is presented and transcript filed; (3) because the certificate of the clerk only refers to three of the causes tried, and does not embrace the principal case disclosed by the record; (4) because the clerk's indorsement upon said transcript does not show for whom the transcript was applied and for whom it was delivered. The appellants resist this motion upon the grounds (1) that the motion is too late, because the supreme court granted leave to file the transcript; (2) because it is claimed that the appellees, in signing the waiver of time for filing the transcript, have waived their right to object to the transcript that is filed; (3) they claim that there is no merit in the motion, as the record shows that all of said causes have been consolidated.

The record shows that on the 23d day of June, 1890, the district court of El Paso county made an order consolidating nine several causes, and ordered that they be tried as one cause, to wit, Charles E. Fruin v. George Paul et al., file No. 1,319; Momsen and Thorn v. George Paul et al., file No. 1,320; William Cameron & Co. v. George Paul et al., file No. 1,322; O. T. Bassett v. Charles E. Fruin et al., file No. 1,323; Burton, Lingo & Co. v. George Paul et al. file No. 1,324; T. M. Cooney & Co. v. George Paul et al., file No. 1,325; Davis and Rogers v. Anson Mills et al., file No. 1,327; Berla & Co. v. Anson Mills et al., file No. 1,340; George Paul v. Anson Mills et al., file No. 1,326; and that all of said parties in said several suits file their pleadings in this cause under file No. 1,319, and that all the rights of said secondary parties be adjusted in this said cause. This order was made in cause No. 1,319, — Charles E. Fruin v. George Paul et al., — and was made upon the application of the appellants in this cause, and embraces the four causes shown by the record to have been tried in said court. At the February term, 1892, four of the cases embraced in the foregoing order of consolidation, to wit, William Cameron & Co. v. George Paul et al., file No 1,322; O. T. Bassett v. Charles E. Fruin et al., file No. 1,323; T. M. Cooney & Co. v. George Paul et al., file No. 1,325; George Paul et al. v. Anson Mills, J. F. Crosby, and Josephine Crosby, file No. 1,327, — were tried, and separate verdicts returned, and separate judgments entered, in each of said causes. The trial (or trials) was had upon separate petitions of each set of plaintiffs, but on one answer, so prepared as to constitute an answer to each petition. The court gave separate charges applicable to each case. Thereafter a motion for a new trial was filed in the cause of Charles E. Fruin v. George Paul et al., stating that the defendants, Anson Mills, J. E. Crosby, and Josephine Crosby, moved the court to set aside the verdicts and judgments rendered in the following causes, consolidated and tried with this cause, viz.: George Paul v. Anson Mills et al., No. 1,326; O. T. Bassett v. Charles E. Fruin et al., No. 1,323; William Cameron & Co. v. George Paul et al., No. 1,322, and T. M. Cooney & Co. v. George Paul et al., No. 1,325. This motion being overruled, defendants gave notice of appeal.

The statement of facts was prepared and filed by the district judge in cause of Charles E. Fruin v. George Paul et al., No. 1,319, and certain causes consolidated therewith. The appellants' assignment of errors is filed in the same cause, and assigns errors committed in the trial of the foregoing four cases, giving their styles and numbers as consolidated and tried together. The appellants filed four supersedeas and appeal bonds in cause No. 1,319, of Charles E. Fruin v. George Paul et al., each reciting that, "whereas, in the above styled and...