Scoggins v. Scoggins, 866

Decision Date11 December 1975
Docket NumberNo. 866,866
Citation531 S.W.2d 245
CourtTexas Court of Appeals
PartiesJames R. SCOGGINS, Jr., Appellant, v. Lillian SCOGGINS, Appellee.

Thomas W. Pauken, Dallas, for appellant.

R. Jack Ayres, Jr., Kelsoe, McDonald & Ayres, Dallas, for appellee.

McKAY, Justice.

This is an appeal from a judgment granting a divorce, approving a property settlement and providing for the custody of two minor children.

At the outset we are confronted with a motion to strike portions of the transcript filed by appellee. The motion to strike is first directed at a document entitled 'Motion to Correct Decree of Divorce' alleging that the court's decree contained erroneous and inaccurate statements concerning events occurring at the trial. The decree was signed by the trial judge on December 19, 1974, and the motion to correct was filed on March 21, 1975. Appellant's motion for new trial was filed December 27, 1974, and was overruled by the court on February 21, 1975, the date of signing, but the order recited that it purportedly was rendered January 31, 1975. Notice of appeal had previously been filed on February 7, 1975. Appeal bond was filed on February 21, 1975. In view of the above facts, if the trial court had not lost jurisdiction to act on such motion, which apparently it did, there is nothing in the record to show such motion was presented to the trial judge, and there is nothing to show any action thereon by him. Rule 376, T.R.C.P., provides, inter alia, that the transcript shall contain 'the order of the court upon any motions or exceptions as to which complaint is made.' The motion to strike instrument designated 'Motion to Correct Decree of Divorce' is granted.

The next portion of the motion to strike complains of a document entitled 'Statement of Facts' and alleges such document was filed in violation of Rule 377(d), T.R.C.P., and should be stricken. The 'Statement of Facts' document is a narrative statement made and sworn to by appellant himself concerning the evidence and incidents and proceedings of the trial. Such document does not contain the approval of the counsel for appellee nor of the trial judge and is, therefore, an ex parte affidavit which was not a part of the trial court record. We cannot consider this so-called 'Statement of Facts', and the motion to strike it is granted.

Complaint is also made by appellee that the instrument in the transcript entitled 'Bill of Exceptions' was filed in violation of Rule 372(f), (g), (h), (i) or (j), T.R.C.P., and should be stricken. Section (f) provides that bills of exceptions which are not in the statement of facts 'shall be presented to the judge for his allowance and signature.' There is no statement of facts nor are there any findings of fact or conclusions of law in the record. Although this bill of exception was prepared by appellant's counsel and signed by him on March 20, 1975, with a place for signature of the judge, there was no signature of such trial judge approving or disapproving the bill. So far as the record shows, there was no presentment to nor action by the trial judge. There is no bystander's bill in the record. Under the above sections of Rule 372, we cannot consider such 'Bill of Exceptions' and the motion to strike same is granted. Bills of Exception which have not been approved by the trial court cannot be considered. Burchfield v. Geitz, 516 S.W.2d 229 (Tex.Civ.App., El Paso, 1974, no writ); Dyches v. Ellis, 199 S.W.2d 694 (Tex.Civ.App., Austin, 1947, no writ).

By his points one and two appellant complains that the trial court erred in accepting into evidence and incorporating into its decree of divorce a consent agreement between the parties (which appellant maintains he did not consent to at any time), and in ruling that he is estopped to deny such agreement. There appears in the record an instrument styled 'Agreement Incident to Divorce' which was approved as to form by counsel for appellant and appellee, was signed and acknowledged before a notary public by appellant and appellee, and such agreement was made a part of the judgment of the court with respect to the division of the community property and the support of the minor children. The judgment is also approved by the signature of the parties and their counsel.

There is no statement of facts in the record. There are no findings of fact or conclusions of law, and there is no request for them. Without a statement of facts we are unable to determine that appellant did no agree to the 'Agreement Incident to Divorce'. The document itself recites the agreement of both parties, and the judgment refers to it as a written agreement and makes it a part of the decree. There is nothing in the record before us which shows that the trial court ruled appellant was estopped to deny the agreement.

Rule 371, T.R.C.P., provides, 'The record on appeal shall consist of a transcript and, where necessary to the appeal, a statement of facts.' In the absence of a statement of facts 'all presumptions consonant with reason are indulged in order to uphold the binding effect of the judgment.' Roberson Farm Equipment Co. v. Hill, 514 S.W.2d 796 (...

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4 cases
  • Thomas v. Oil & Gas Bldg., Inc.
    • United States
    • Texas Court of Appeals
    • 19 Aprile 1979
    ...v. Coastal Industrial Water Authority, 490 S.W.2d 883 (Tex.Civ.App. Houston (1st Dist.) 1973, writ ref'd n. r. e.); Scoggins v. Scoggins, 531 S.W.2d 245 (Tex.Civ.App. Tyler 1975, no writ); Burchfield v. Geitz, 516 S.W.2d 229 (Tex.Civ.App. El Paso 1974, no Under the record here presented, we......
  • Womack v. First Nat. Bank of San Augustine
    • United States
    • Texas Court of Appeals
    • 12 Marzo 1981
    ...v. Coastal Industrial Water Authority, 490 S.W.2d 883, 885 (Tex.Civ.App. Houston (1st Dist.) 1973, writ ref'd n. r. e.); Scoggins v. Scoggins, 531 S.W.2d 245 (Tex.Civ.App. Tyler 1975, no writ). The ultimate question of whether a prospective juror is in fact disqualified by reason of interes......
  • Graves v. Alders
    • United States
    • Texas Court of Appeals
    • 25 Marzo 2004
    ...trial. The mere fact of the denial of a motion for new trial is too general to be considered as a valid issue on appeal. Scoggins v. Scoggins, 531 S.W.2d 245, 248 (Tex.Civ.App.-Tyler 1975, no writ). Issue Four is The judgment of the trial court is affirmed. AFFIRMED. DON BURGESS, Justice, c......
  • Duval County Ranch Co. v. Harlingen Nat. Bank
    • United States
    • Texas Court of Appeals
    • 8 Febbraio 1979
    ...by a statement of facts which pertains solely to the evidence developed at a hearing on their motion for new trial. See Scoggins v. Scoggins, 531 S.W.2d 245 (Tex.Civ.App. Tyler 1975, no writ); Hughes v. Hughes, 407 S.W.2d 14 (Tex.Civ.App. Waco 1966, no writ); P. & M. Sales Co. v. Kenmore Je......

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