Roberson Farm Equipment Co. v. Hill

• Decision Date: 17 December 1973
• Docket Number: No. 8220,8220
• Citation: Roberson Farm Equipment Co. v. Hill, 514 S.W.2d 796 (Tex. Ct. App. 1973)
• Parties: ROBERSON FARM EQUIPMENT COMPANY, Appellant, v. Sylvester W. HILL, Appellee.
• Court: Texas Civil Court of Appeals

Page 796

514 S.W.2d 796

ROBERSON FARM EQUIPMENT COMPANY, Appellant, v. Sylvester W. HILL, Appellee.

No. 8220.

Court of Civil Appeals of Texas,

Texarkana.

Dec. 17, 1973.

Rehearing Denied Aug. 20, 1974.

John B. Greer, III, Hubbard, Patton, Peek, Haltom & Roberts, Texarkana, for appellant on motion for rehearing in Court of Civil Appeals only.

Harry Friedman, Harkness, Friedman & Kusin, Texarkana, for appellee.

CHADICK, Chief Justice.

This is a breach of warranty case. A non-jury trial resulted in a judgment awarding plaintiff Sylvester W. Hill, appellee here, a recovery of $17,600.00 with interest, costs, etc., from defendant, Roberson Farm Equipment Company, appellant here. The judgment of the trial court is affirmed.

The statement of facts tendered for filing in this court was not authenticated by a signed certificate of agreement by the parties or a signed certificate of approval by the judge of the trial court. The clerk of this court filed the document December 17, 1973, the day it was tendered. Thereafter on January 14, 1974, less than thirty days after such tender and filing, the appellee filed a motion to strike the statement of facts on the grounds 'that Rule 377 of the Texas Rules of Civil Procedure had not been observed, such statement of facts not having been approved by the trial judge or presented to, or approved, by the appellee or his attorney, and such statement of facts is not acceptable to the appellee * * *.' Appellee's response to the motion stated that because of 'the time factor' the unauthenticated statement of facts was filed when it was ascertained that appellee's counsel was out of town and that the trial judge could not be located. The deadline for filing the statement of facts was December 27, 1973, unless time therefor was enlarged under the terms of Tex.R.Civ.P. 386 .

The appellant makes no contention that the statement of facts was authenticated as required by Tex.R.Civ.P. 377(d), but argues that the motion to strike did not give reasons for the statement of facts being unacceptable and that 'appellee has had notice of the filing of said statement of facts from the day after the filing of the same and has had ample time to disapprove, in writing, as required of said statement of facts.' On motion for rehearing appellant expands this contention by insisting that failure to authenticate the statement of facts is not only an informality in the manner of bringing a case into court, but also constitutes an omission from the statement of facts that is correctable under the terms of Tex.R.Civ.P. 428; and that failure to authenticate simply categorizes the statement of facts as one prepared in violation of the rules governing the preparation of such documents and therefore is now subject to rehabilitation in accordance with the terms of Tex .R.Civ.P. 429. Such propositions cannot be sustained. The defect is an informality in bringing a case into court and can only be cured as such; the effect of this defect will be noticed in subsequent discussion. In Pacific Fire Ins. Company v. Smith, 145 Tex. 482, 199 S.W.2d 486 (1947) it is said:

'The failure of statement of facts to be properly authenticated was, in our judgment, one of the 'informalities in the manner of bringing a case into the court' contemplated by Rule 404; and thus it was incumbent upon the respondent to file his objections to it within the thirty-day period provided, otherwise the defect was waived. Looney v. Wing, Tex.Civ.App., 195 S.W.2d 557.

'The waiver thus enforced relates only to the lack of approval of the statement of facts. It has nothing to do with inaccuracies therein, or omissions therefrom, of anything material to the rights of the parties. Under our rules and decisions ample opportunity is provided for the correction of the statement of facts subsequent to the thirty-day period mentioned in Rule 404 where it appears that the same is not properly prepared or some material portion has been omitted. Rules 428, 429; Smirl v. Globe Laboratories, 144 Tex. 41, 188 S.W.2d 676; Barron v. James, 145 Tex. 283, 198 S.W.2d 256; Harris v. Stark, 101 Tex. 587, 110 S.W. 737; Boggess v. Harris, 90 Tex. 476, 39 S.W. 565.'

As mentioned, appeal procedure requires a statement of facts to be authenticated in accordance with Rule 377(d) and in the absence of such authentication Tex.R.Civ.P. 389(a) does not permit the clerk of this court to do more than accept custody of the unauthenticated statement of facts. On receipt of an unauthenticated statement of facts it is the clerk's duty to endorse thereon the time of receipt and notify the party tendering it (or the party's attorney) of the action taken and reasons therefor. On motion for rehearing it is urged that the clerk's dereliction in this instance prejudiced the appellant. The question of invited error aside, under this record it is difficult to perceive how filing the statement of facts was prejudicial to appellant. As stated earlier, appellant's counsel acknowledged that he was well aware that the statement of facts was not authenticated, but because of the time element deliberately tendered it to the clerk for filing in its unauthenticated condition . Advice from the clerk that the document was not authenticated would have revealed no fact to counsel that he was not conscious of and would have advised counsel only of a condition that he had previously decided to ignore. The clerk's improper filing of the statement of facts was in appellant's favor and could not have lulled appellant's counsel into a sense of security because application of Rule 404 is not made to depend upon whether the document is filed or merely retained in the clerk's custody or upon the clerk's action in this respect.

The motion for rehearing persuasively argues the sophistic proposition that by sustaining appellee's objection to the statement of facts, this court 'would be taking the position that if the statement of facts is before the Court and is true and correct, that the Court of Civil Appeals could not consider it even though it spoke the truth, only because it lacked the signature of opposing counsel.' Such argument ignores the appellant's duty, the 'overall appellate burden' of one who seeks relief, to file a statement of facts, in accordance with rules pertaining thereto, when such statement is necessary. Williams v. State, 307 S.W.2d 290 (Tex.Civ.App. Austin 1957, no writ); Texas Employers Ins. Ass'n v. Campion,236 S.W.2d 193 (Tex.Civ.App. Austin 1950, no writ). The argument also undertakes to relieve appellant of this 'appellate burden' on the ground that appellee was under a duty to do so and failed to point out an omission, lapse, or defect prejudicial to appellee in the tendered statement of facts. Such an obligation on appellee's part is advocated and urged despite the acknowledged fact that appellant never presented the statement of facts to appellee for examination or approval. The contention is without merit. Diligence in securing authentication of a statement of facts is required of an appellant. See Gonzales v. United States Fidelity & Guaranty Company, 154 Tex. 118, 274 S.W.2d 537 (1955). The rule make no provision for waiver of authentication on the grounds urged.

To function and coordinate with other rules governing statement of facts in cases on appeal, Tex.R.Civ.P. 386, prescribing the time for filing statement of facts, pre-supposes the filing of either a properly authenticated statement of facts or the tender of a statement of facts subject to waiver of authentication by operation of Tex.R.Civ.P. 404. Waiver of authentication effected by the operation of Rule 404 is the only relaxation or supersession of the provisions and requirements of Rule 377(d) pertaining to authentication, that is to be found in the procedural rules. The appellant cites no rule or authority to the contrary or out of harmony with this construction. In this instance, a timely motion to strike was filed and authentication not having been waived by operation of Rule 404, the motion to strike is sustained. No case precisely in point has been found that supports such disposition, but see: Gonzales v. United States Fidelity & Guaranty Co., 266 S.W.2d 238 (Tex.Civ.App. San Antonio 1954, affirmed, 154 Tex. 118, 274 S.W.2d 537 (1955); Walden v. Sanger, 250 S.W.2d 312 (Tex.Civ.App . Austin 1952, no writ); Green v. Davis, 451 S.W.2d 579 (Tex.Civ.App . Fort Worth 1970, no writ); Meridian Resources, Inc. v. Colley Gin Co., 430 S.W.2d 372 (Tex.Civ.App. Corpus Christi 1968, no writ); Pacific Fire Insurance Company v. Smith, 199 S.W.2d 486 (Tex.Sup.1947).

Appellant's first point of error is concerned with the admission of evidence. The second and third points are directed to the absence of evidence to support the trial court's judgment. The fourth point questions the construction of a written warranty offered into evidence. These points show on their face that the merit of such points may only be determined by resort to the content of the statement of facts. In the absence of a statement of facts, the situation here, these points are not reviewable. Lane v. Fair Stores, Inc., 150 Tex. 566, 243 S.W.2d 683 (1951); Houston Fire & Casualty Ins. Co. v. Walker, 152 Tex. 503, 260 S.W.2d 600 (1953); and Kavanagh v. Holcombe,312 S.W.2d 399 (Tex.Civ.App. Houston 1958, writ ref'd, n.r.e.).

Appellant's fifth point of error in the original brief and supplemental points in the motion for rehearing raises the issue that the judgment herein allowed a double recovery of damages. Resolution of this issue also...