Ragland v. Rogers

• Decision Date: 01 January 1870
• Citation: 34 Tex. 617
• Parties: R. S. RAGLAND v. G. F. ROGERS, ADM'R, ETC.
• Court: Texas Supreme Court

34 Tex. 617

R. S. RAGLAND

v.G. F. ROGERS, ADM'R, ETC.

Supreme Court of Texas.

1870.

1. Though there is no statement of facts, yet if the instructions given and refused raise a strong presumption that proper evidence was excluded by the court, to the prejudice of the appellant, the judgment will be reversed.

2. A homestead in a town or city may consist of any number of lots, provided their aggregate value does not exceed the amount prescribed by law.

3. It is immaterial whether the several lots constituting an urban homestead adjoin each other, or whether they are separated from each other by streets, or by lots of other proprietors. Mr. Justice Ogden dissenting.

4. The widow of a decedent is not compelled to accept as the homestead the identical premises which were the homestead before her husband's death. She has the right to select, out of the entire estate, the homestead to be set apart for herself and children.

5. When the homestead selected by the widow was of less value than $2,000 (the maximum previous to the constitution of 1869), she was entitled to have the deficiency made up in money arising from other property of the estate, if there was other property. Mr. Justice Ogden dissenting.

6. See the dissenting opinion of Mr. Justice Ogden for the reasons on which he controverts certain of the foregoing rulings.

ERROR from Victoria. Tried below before the Hon. Wesley Ogden.

This case arose and was adjudicated in the lower courts previous to the adoption of the constitution of 1869. The character of the cause and the material facts are sufficiently indicated in the opinion of the court.

Hancock & West, for the appellant.

Phillips & Nevill and Glass & Callender, for the appellee. The transcript shows no bill of exceptions nor statement of facts, and it is admitted that there is neither one nor the other in the case, that could be brought up by certiorari. The absence of these indispensable parts of a record for revision, is attempted to be accounted for by affidavit of the counsel that the district court adjourned the same day the judgment was rendered, and unexpectedly to them. This may be true in fact, but affords no excuse in law. They knew, as lawyers, that the bills of exceptions must be signed and that the statement of facts must be made up, approved and signed during the term, and it was their business to find out when the term would end. See statute, Pas. Dig. art. 1490.

The want of the statement of facts cannot be supplied by affidavit or otherwise (Walker v. McNeill, Dallam, 541; Prewitt v. Woods, 1 Tex. 522;Garnett v. Roberts, 16 Tex. 556); nor can it be supplied by agreement of counsel (Sheldon v. Boyce, 20 Tex. 830); and we may say that to allow it to be supplied in any way would not only be a violation of the statute but would open the door to dangers startling to contemplate.

Without a statement of facts or a bill of exceptions there is nothing in this cause which this court can revise. In Moore v. Hardison, 10 Tex. 467, which was a probate case like the present, this court refused to revise or reverse the judgment, because there was “no bill of exceptions or statement of facts, showing the ruling of the court on any question of law, or statement of the evidence upon which the judgment was founded,” but declared, in conclusion of their opinion, that “it is not sufficient that it may be supposed there was error in the court below. That error must so distinctly appear that the finger can be put upon it; and we have uniformly decided, whenever the question has been presented, that where there is neither statement of the facts, nor bill of exceptions, nor error apparent upon the record, we must presume the judgment below was rightly rendered, and upon sufficient legal testimony. Dewees v. Hudgeons, 1 Tex. 192;Jones v. Black, 1 Tex. 527;Duffield v. Bodine, 2 Tex. 292; Bodine v. Houston, 2 Tex. 594;Kirkman v. Snively, 2 Tex. 447. There is nothing to which we can point in the record in this case, and say, ‘upon this point the court erred,’ or ‘here is error.’ 'DD' 10 Tex. 473; and see also Dalby v. Booth, 16 Tex. 563; Armstrong v. Lipscomb, 10 Tex. 649.

The assignment of errors attacks the instructions of the court to the jury; but, without a statement of facts, neither instructions nor a refusal to give them, can be revised. Lewis v. Black, 16 Tex. 653;Holman v. Britton, 2 Tex. 299, 304;Chandler v. The State, 2 Tex. 308;Henderson v. Trimble, 8 Tex. 175. And this is not only settled by authority, but is reasonable in itself; for without their statement of facts how can this court determine whether the district court stated to the jury, or failed to state to them, the law applicable to the facts which the evidence conduced to establish? Or, how can this court know whether a certain instruction could or could not mislead the jury when applied to the facts shown in evidence?

EVANS, P. J.

In this case the plaintiff brings her suit in the county court as the widow of the late John B. Ragland, deceased, against his administrator, averring that she and her children are reduced to absolute want, and praying the court to set apart to her, for her use and that of her children, certain lots of ground in the town of Victoria, or so much thereof as might amount to her homestead claim of two thousand dollars, and all exempt personal property not received by her in kind, or in lieu thereof, its value in money; proposing to have set apart for her certain lots, including her dwelling, at their appraised value, to wit: $2,863, agreeing to pay to the administrator the excess, $863.

The plaintiff amends her original petition, and asks, in case her prayer is not granted, that she be permitted to select, in lieu of the lot on which her dwelling is situated, other lots at their appraised value.

On the hearing of the case in the county court, there was a decree from which the plaintiff appealed to the district court, where the case was tried de novo, and at the hearing thereof the court charged the jury:

“In this case I charge the jury, that you are to find one specific verdict, viz. What was Dr. Ragland's family residence at the time of his death? And in determining this issue, you should determine from the evidence what lot or lots, with the improvements thereon, Dr. Ragland with his family occupied as a residence at the time of his death.

I further charge you that you should not, in forming your verdict, take into consideration any facts or proof of the ownership by Dr. Ragland of any farm land, or even town lots, provided the same is separated by a street, or property owned by other parties, from the lot on which the actual family residence is situated.”

The court refused to charge that a man's residence is not confined, if within the limits of a town, recognized as such by act of...