Sabine & E. Tex. R'Y Co. v. Joachimi

• Decision Date: 18 January 1883
• Docket Number: Motion No. 749.
• Citation: 58 Tex. 452
• Court: Texas Supreme Court
• Parties: SABINE & EAST TEXAS R'Y CO. v. H. W. JOACHIMI.

58 Tex. 452

SABINE & EAST TEXAS R'Y CO.

v.H. W. JOACHIMI.

Motion No. 749.

Supreme Court of Texas.

Jan. 18, 1883.

APPEAL from Jefferson. Tried below before the Hon. W. H. Ford.

In this cause the following motion was filed by appellee's attorney.

“And now comes the appellee, H. W. Joachimi, by his attorney in this cause, and moves the court to strike out the bill of exceptions of the appellant, the Sabine & East Texas Railway Co., for the following reason, namely, because the said bill of exceptions, containing two exceptions, was not filed within ten days after the entry of the judgment in the cause in the district court. The cause was tried, verdict rendered, and judgment entered on the 24th day of November, 1882, and the bill of exceptions was not filed until December 5, 1882. R. S., art. 1363.

TOM J. RUSSELL, Attorney for Appellee.

The appellee H. W. Joachimi, by his attorney, moves the court to strike out the statement of facts as appears in the transcript in this cause, because the rules of the court and the statute (R. S., arts. 1377, 1378) were not complied with, in this, that the appellant, nor its attorneys, did not submit the statement of facts to the appellee H. W. Joachimi, or Tom J. Russell, his attorney, for inspection and acceptance or rejection, before the same was presented to the judge of the district court of Jefferson county, who tried the cause for his approval, as appears by the appended affidavit.

TOM J. RUSSELL, Attorney for H. W. Joachim??

THE STATE OF TEXAS, COUNTY OF GALVESTON.

Before me, the undersigned authority, personally appeared Tom J. Russell, attorney of record in the cause No. ____, Sabine & East Texas Railway Co., appellant, v. H. W. Joachimi, appellee, who, being duly sworn, says that he was the attorney for the plaintiff H. W. Joachimi v. Sabine & East Texas Railway Co., defendant in the court below; that judgment was given on the trial for the plaintiff, and that defendant appealed; that an order was taken by defendant of ten days' time after adjournment of court, in which to prepare and file a statement of facts; that the court adjourned on December 5, 1882; that he, affiant, has an office in the city of Beaumont, county seat of Jefferson county; that he was in his office during office hours during the days as follows: On Wednesday, December 6th; Thursday, December 7th; afternoon of Friday, December 8th; on Sunday, December 10th; on Tuesday, December 12th, and on Wednesday, December 13, 1882; and that during that time, the days above named, nor at any other time previous to the filing of said statement of facts, December 15, 1882, did the appellants, the defendants below, or their attorneys of record, O'Brien & John, nor other person on behalf of appellants, present to affiant the statement of facts in said cause for inspection, so that he could agree to or reject the same; and that affiant never saw the statement of facts as made up by appellant or its attorneys before the same was filed in the office of the district court of Jefferson county; and affiant is informed by H. W. Joachimi, appellee, that no statement of facts in said cause was ever presented to him for inspection, by appellant, its attorneys or other person, from and after the adjournment of the court December 5, 1882, and on or before the 15th day of December, 1882.

TOM J. RUSSELL.

And further, the appellee in this cause moves the court to dismiss this cause, namely, the Sabine & East Texas Railway Company, appellant, v. H. W. Joachimi, appellee, because the appeal is not properly perfected, in this, that there is only one copy of appellant's brief filed in this court in the cause, as the rules require.

TOM J. RUSSELL, Attorney for Appellant.

The above affidavit was sworn to and subscribed before me this 16th day of January, A. D. 1882.

DAN'L D. ATCHISON, Clerk.”

Appellant's counsel filed the following answer to the foregoing motion, January 16, 1883:

“And now comes George W. O'Brien, attorney for appellant, and being duly sworn, says: That having several statements of facts to prepare in other cases during the time allotted after the term, he had not completed them until about the expiration of the time, and the judge being at Woodville, he took it for granted that T. J. Russell, Esq., had, in this cause, notice of appeal having been given, prepared a statement for appellee, and took his statement for appellant to the judge at Woodville, and found in the hands of the judge the appellee's statement made up by the said T. J. Russell, Esq., a part whereof, in the writing of the said Russell, Esq., was adopted by said judge and made a part of the statement which is a part of the record.

GEO. W. O'BRIEN.

Sworn to and subscribed before me by the said Geo. W. O'Brien this 17th day of January, A. D. 1883.

DAN'L D. ATCHISON, Clerk.”

WILLIE, CHIEF JUSTICE.

This motion has three objects--one to strike out the bill of exceptions, another to strike out the statement of facts, and the third to dismiss the cause because appellant has filed only one copy of brief. As to the first, the ground relied upon is that it was not filed within ten days after the entry of the judgment in the cause. The verdict and judgment were entered on the 24th of November, 1882, and the bill...