Missouri, K. & T. Ry. Co. of Texas v. Waggoner

• Decision Date: 28 March 1908
• Citation: 109 S.W. 971
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. WAGGONER.
• Court: Texas Court of Appeals

Page 971

109 S.W. 971

MISSOURI, K. & T. RY. CO. OF TEXAS v. WAGGONER.

Court of Civil Appeals of Texas.

March 28, 1908.

On Rehearing, April 25, 1908.

Appeal from District Court, Grayson County; B. L. Jones, Judge.

Action by James Waggoner against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

Coke, Miller & Coke and Smith & Wall, for appellant. Wolfe, Hare & Maxey, for appellee.

TALBOT, J.

Appellee Waggoner has presented, in this case, a motion to strike out the statement of facts. The cause was tried in the district court of the Fifteenth judicial district of Texas, April 5, 1907. Appellant's motion for a rehearing was overruled May 6, 1907, and notice of appeal then given. The appeal bond was filed and approved, and the appeal perfected May 25, 1907. The record indorsed "Statement of Facts" and sent up to this court purports to be the stenographic notes of the oral evidence, consisting of questions and answers and other proceedings had on trial, prepared in accordance with the act of the Twenty-Ninth Legislature, which took effect July 14, 1905 (Laws 1905, p. 219, c. 112). This report of the stenographer appears to have been agreed to by the attorneys representing the parties, and approved by the trial judge on the 19th day of August, 1907, but does not appear to have been filed with the clerk of the district court. The act of the Thirtieth Legislature passed at its first-called session, relating to the appointment of stenographers and the method of preparing statements of facts, took effect the 11th day of August, 1907 (Laws 1907, p. 509, c. 24), and hence was in force when the purported statement of facts in this case was approved. The case having been tried, judgment rendered, and the appeal perfected while the act of the Twenty-Ninth Legislature upon the subject was in force, but the agreement to and approval of the stenographer's report or transcript of the testimony sent to this court having occurred after the act of the Thirtieth Legislature became effective, the question is, did the provision of the former act or of the latter act apply and govern as to the method of preparing and bringing up the evidence in this case? If there could have been any doubt upon the question, it seems to have been definitely settled by the Supreme Court in the case of Elliott v. Ferguson, 100 S. W. 911. It is there held that the procedure in the preparation of appeals in cases already tried may be controlled by legislation thereafter adopted. It is said: "The procedure, being always within the control of the Legislature, must, as a general rule, conform to the law in force when it is taken, and a statute of this character is to be treated as intended to govern all such proceedings as are to be had after it begins to operate unless a different intent is to be gathered from its provisions"—citing Endlich on Statutes, § 285 et seq. An intention to vary the general rule stated cannot be inferred from the provision of the act of the Thirtieth Legislature. That act provides for the appointment of official stenographers to report cases, and requires them in case of appeal and upon request by the party appealing or his attorney of record to make up a duplicate statement of facts, which shall consist of the evidence introduced on the trial, both oral and by deposition, stated in narrative form. If the parties cannot agree upon a statement of facts, each party or his attorney shall make out a condensed statement of facts, and submit such statement to the court, and the court shall make out a statement of facts. In the performance of this duty the judge may call the stenographer and "require him to read from his stenographic notes for his information, and may direct such stenographer to make up such statement of facts for him, which when so made and approved by the court shall be filed in the cause, and shall constitute the statement of facts in such cause." This act of the Legislature makes material and important changes in the law as contained in the act of the Twenty-Ninth Legislature, relating to the method of making up and filing the statement of facts on appeals, and expressly repeals the latter act. The statement of facts under consideration was not prepared and filed in the lower court, as required by the act of the Thirtieth Legislature, which was in force at the time of its approval by the trial judge, and although the judgment appealed from was rendered before that act became effective, yet, inasmuch as it went into effect before said statement of facts was agreed to by the parties and approved by the trial judge, its provisions applied and controlled in the preparation and filing thereof....