Newnom v. Williamson

• Decision Date: 05 June 1907
• Citation: 103 S.W. 656
• Parties: NEWNOM et al. v. WILLIAMSON.
• Court: Texas Court of Appeals

103 S.W. 656

NEWNOM et al. v. WILLIAMSON.

Court of Civil Appeals of Texas.

June 5, 1907.

Rehearing Denied June 28, 1907.

Appeal from District Court, Jackson County; J. C. Wilson, Judge.

Trespass to try title by George E. Williamson against G. H. Newnom and another. Defendant Newnom appeals from a judgment for plaintiff. Affirmed.

James & Yeiser, for appellant. Proctors and Vandenberge & Crain, for appellee.

NEILL, J.

We are met at the threshold of this appeal by a motion of the appellee to strike out the statement of facts, which must be disposed of before considering the case. It appears from the record that appellant has not attempted to prepare and have incorporated a statement of facts, under the provisions of articles 1379 to 1381, inclusive, of the Revised Statutes of 1895; but that, in lieu of such a statement, he seeks to have made a part of the record, and have considered as a statement of facts, the stenographer's report of the oral evidence, and accompanies the same by a number of written documents, such as sketches, maps, plats, copies of field notes, and other instruments, not embraced in the stenographer's report, nor transcribed by the clerk with other parts of the record, which are sent up with the original form, though in no way attached to it. Wherefore it is insisted by the appellee that, inasmuch as it is apparent from the record that the cause was tried upon both oral and documentary evidence, there is no complete statement of facts properly in the record; neither the documentary nor oral evidence being presented in the proper form, to be considered on this appeal.

It is first urged in this contention that the part of the stenographer's act, which provides "that original documentary evidence, maps, plats or other matters introduced in evidence, and if embraced in the stenographer's report, may be made a part of the record of said cause by written direction of the court, which may be sent up in the original form if requested by either party to the suit, or transcribed by the clerk with other parts of the record therein" (Acts 29th Leg. p. 220, c. 112, § 5), is void because in derogation of section 3, art. 35 of the Constitution. Before entering upon a consideration of the question involved by this contention, the writer wishes to say that, notwithstanding the difficulty the Courts of Civil Appeals have encountered in their efforts to administer the law under the stenographer's act—which has caused their judges to "groan and sweat under a weary load," and given justice the blind staggers — an earnest effort will be made by the members of this court to do justice to the act as it stood before the Twentieth Legislature demonstrated the wisdom of Thomas Buckle, as well as its own, in his observation that the greatest benefit to society derived from legislation is the repeal by subsequent Legislatures of prior legislative enactments, by so emasculating it that it will no longer stifle justice, bewilder judges, nor plague its inventor. The article of the Constitution referred to is as follows: "No bill * * * shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed." The title of the bill in question is: "An act to provide for the appointment of a competent stenographer to report cases, and to make the report of such stenographer, when filed and approved, the statement of facts of the oral evidence in the case; and to provide for the compensation of such stenographer." Is that portion of the stenographer's act, which provides for original documentary evidence, etc., being made a part of the record and sent up in the original form with the record on appeal, within the meaning of the article of the Constitution quoted, expressed in the title?

Before entering upon a discussion of the question, we will enunciate the principles of law which shall guide us in its consideration. The object of the constitutional requirement as to the title is that the legislators and others interested shall receive direct notice, in immediate connection with the act itself, of its subject, so that they may be put upon inquiry as to the provisions and their effect. Commonwealth v. Kebort, 61 Atl. 895, 212 Pa. 285; Cooley's Constitutional Limitations, 117. "The intent of this provision was to prevent the union, in the same act, of incongruous matters, and objects having no connection, no relation; and with this it was designed to prevent surprise in legislation, by having matter of one nature embraced in a bill whose title expressed another." State v. County Judge, 2 Iowa, 280. Says Cooley on Const. Limitations (7th Ed.) p. 205: "It may be assumed as settled that the purpose of these provisions was: First, to prevent hodge-podge or `log-rolling' legislation; second, to prevent surprise or fraud upon the Legislature by means of provisions in bills of which the titles gave no intimation, and which might therefore be overlooked and carelessly and unintentionally adopted; and, third, to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon, by petition or otherwise, if they shall so desire. * * * The general purpose of these provisions is accomplished when a law has but one general object, which is fairly indicated by the title. * * * The generality of a title is therefore no objection to it, so long as it is not made a cover to legislation incongruous in itself, and by which no fair intendment can be considered as having a necessary or proper connection." In Doeppenschmidt v. I. & G. N. Ry. Co., 99 S. W. 859, 18 Tex. Ct. Rep. 394, the Supreme Court, in testing an act by the same constitutional provision, after reiterating the proposition: "This provision has been frequently construed to require only the general or ultimate object to be stated in the title, and not the details by which the object is attained. Any provision calculated to carry the declared object into effect is unobjectionable, although not specially indicated by the title" (quoted in Johnson v. Martin, 75 Tex. 33, 12 S. W. 321) —says: "We are of the opinion that the rule, `the expression of one thing excludes another,' should not be applied to the title of a statute. It would be burdensome, if not intolerable, to require that the title should be as full as the act itself. The word `title' implies that no such requirement exists. The purpose of the constitutional provision is merely to reasonably apprise the legislators of the contents of the bill, to the end that surprise and fraud in the Legislature may be prevented."

Any one reading the title of the act in question, with the least familiarity with judicial procedure, would know that many cases would be tried in which documentary evidence, as well as oral testimony, would necessarily be introduced, and that, if such evidence could not be incorporated in the record in connection with the stenographer's report of the oral testimony, there could be no such statement of facts as the law contemplates. In other words, it would be apparent to any one that the report of the stenographer of the oral evidence could not in many cases be a complete statement of facts, but only of the oral evidence. Nor can it be implied from the title of the act that the stenographer's report should be confined to the oral evidence, for it shows that the act provides "for the appointment of a competent stenographer to report cases," which is broad enough to embrace all the proceedings had during the trial of a cause. That the remainder of the title only provides for making the report, when filed and approved, the statement of facts of the oral evidence in the case, does not exclude the idea that original documentary evidence, maps, plats, etc., if embraced in the stenographer's report, is a part of the record of the cause, as is provided in section 5 of the act, for, as is said in Doeppenschmidt v. Railway, supra: "The rule that the expression of one thing excludes another should not be applied to the title of a statute." It is only when a transcript of the stenographer's report is made at the request of either party to the suit that such transcript, if approved and signed by the judge, is required to be filed among the papers of the cause, and becomes a record therein. Therefore, if the contention of the appellee should be upheld, it would rest in the power of either party, by making such request to the stenographer, to deprive the other party of all the documentary evidence in a case. Let us illustrate the effect of this by supposing the simplest case of trespass to try title: A. sues B. to recover possession of a tract of land. He has a complete chain of title from the sovereignty of the soil down to himself. B. is a naked trespasser. A. offers in evidence all his documentary evidence, which, if admitted, would show a complete title in himself; but the court erroneously excludes one of his deeds, and then, upon the assumption that there is a hiatus in A.'s chain of title, peremptorily instructs a verdict for the defendant, and a judgment is rendered in his favor upon the verdict returned in obedience to the court's charge. A. appeals from the judgment, and at B.'s request the stenographer's transcript of the report of the case is made out, filed among the papers, made a part of the record, and sent up as the record of said cause of the report of the testimony therein. This report embraces all of the original documentary evidence introduced on the trial, as well as the excluded deed, the ruling of the court upon the objection made by defendant to its being admitted in evidence, and the exception taken by the plaintiff to the ruling of the court sustaining such objection;...