Sanchez v. Atchison, T. & S. F. Ry. Co.
| Decision Date | 29 November 1905 |
| Parties | SANCHEZ v. ATCHISON, T. & S. F. RY. CO. |
| Court | Texas Court of Appeals |
Action by Nicholas Sanchez against the Atchison, Topeka & Santa Fé Railway Company. Plaintiff took a nonsuit, and, on the denial of the motion to reinstate the cause, brings error. Affirmed.
Patterson, Buckler & Woodson, for plaintiff in error. J. W. Terry and A. H. Culwell, for defendant in error.
Plaintiff in error sued defendant in error to recover for damages alleged to have accrued while he was working for defendant in error in a coal chute. After plaintiff in error had presented his testimony in the lower court, defendant in error moved the court to instruct the jury to return a verdict for it, and thereupon plaintiff in error asked for and obtained a nonsuit, and the cause was dismissed. Afterwards plaintiff in error made a motion to reinstate the cause, which was overruled by the court and from that order this writ of error has been perfected.
Both parties in their briefs treat the matter as though there was an intimation from the court that he would sustain the motion of defendant in error to instruct a verdict in its behalf, but the record fails to disclose such fact. It is true that it is so stated in the motion to set aside the judgment, but that is not evidence of it. The court may have found that the statements in the motion were not true, and the presumption will prevail that it did so. The admissions of counsel for defendant in error in their brief cannot change a record so as to show certain action upon the part of the court which the record fails to disclose. The actions of the trial court must be reviewed in the light of the matters disclosed by the record, and not by matters asserted by one party and acquiesced in by another in their briefs. If the district judge informed plaintiff in error that he intended to sustain the motion to instruct a verdict for plaintiff in error, the record should have been made to disclose it. It could have been done by inserting it in the order of the court or by a bill of exceptions taken at the time, or in some other manner to have stamped it with authority. Baily v. Trammell, 27 Tex. 326; Willis v. Smith, 90 Tex. 635, 40 S. W. 401; Brown v. Mitchell, 88 Tex. 350, 31 S. W. 621, 36 L. R. A. 64. The record presents a case of a voluntary nonsuit taken by plaintiff in error. The judgment recites that "the plaintiff announced that he would no longer prosecute this suit, and asks that the same be dismissed without prejudice at his cost, which is now and hereby accordingly done." There is nothing in the record which tends to show the incorrectness of that recital. It follows that an assignment of error that "the court erred in its conclusion that the defendant was entitled to have given to the jury a peremptory charge to find in its favor at the conclusion of the testimony, and in its compelling plaintiff to take a nonsuit or to submit to a verdict against him," finds no basis or support in the record. It is the rule in some of the states that a plaintiff who voluntarily suffers a judgment of nonsuit to be taken against him has no right to appeal, but that rule was modified in this state, early in its existence, by the Supreme Court in the cases of Huston v. Berry, 3 Tex. 235, and...
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Ryan v. Phœnix Ins. Co. of Hartford, Conn.
...gave the court jurisdiction to reinstate the case on motion. It is intimated by the Texas Civil Court of Appeals in Sanchez v. A., T. & S. F. Ry. Co., 90 S. W. 689, that if the voluntary dismissal was entered because of a statement by the trial judge that he intended to direct a verdict in ......
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Ryan v. Phoenix Ins. Co. of Hartford, Conn.
...... motion. . . It is. intimated by the Texas civil court of appeals, in. Sanchez [204 Iowa 658] v. Atchison, T. & S. F. R. Co. (Tex. Civ. App.), 90 S.W. 689, that, if the. voluntary dismissal was entered because of a statement ......
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San Antonio Public Service Co. v. Mitchell
...statute permits matters to be heard aliunde the transcript. American Ins. Co. v. Murphy (Tex. Civ. App.) 61 S. W. 956; Sanchez v. Railway (Tex. Civ. App.) 90 S. W. 689. We are not authorized to reverse judgments on the ground of newly discovered evidence. This can only apply to a trial The ......
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Benedict v. Chicago, R. I. & P. Ry. Co.
...S. W. 564; Boyd v. Kimball, 21 Tex. Civ. App. 7, 50 S. W. 634; Sanchez v. A. T. & S. F. Ry. Co. [decided November 29, 1905, by this court] 90 S. W. 689) that where the plaintiff has been surprised by the decision of the court in ruling out his testimony, he shall not be compelled to proceed......