Simpson v. Alexander & Wofford

• Decision Date: 10 February 1912
• Citation: 149 S.W. 748
• Parties: SIMPSON v. ALEXANDER & WOFFORD.
• Court: Texas Court of Appeals

149 S.W. 748

SIMPSON v. ALEXANDER & WOFFORD.

Court of Civil Appeals of Texas. Amarillo.

February 10, 1912.

On the Merits, April 6, 1912.

On Rehearing, May 18, 1912.

Second Rehearing Denied June 22, 1912.

Appeal from Sherman County Court; J. W. Elliott, Judge.

Action by Alexander & Wofford against George Simpson. Judgment for plaintiffs, and defendant appeals. Reversed and remanded on rehearing.

C. F. Rudolph, of Stratford, and Clifford Braly, of Dalhart, for appellant. John H. H. Stahl, of Stratford, for appellees.

GRAHAM, C. J.

This cause is before us on an attempted appeal from a moneyed judgment rendered in the county court of Sherman county on March 8, 1911, for the sum of $50 in favor of appellees and against appellant, as damages for an alleged breach of contract. The record conclusively shows that the amount in controversy was not within the original jurisdiction of the county court, being less than $200; while there is also amply sufficient in the record to show that the case originated in the justice court of precinct No. 4, of Sherman county, in which a judgment was rendered in favor of appellees and against appellant, there is nothing found in the record before us showing or tending to show that the county court acquired jurisdiction of the cause, there being no transcript in the record showing how the cause went from the justice to the county court.

In the absence of the record showing that the county court in some way had jurisdiction to dispose of the cause on its merits, this court is without jurisdiction to dispose of the appeal on its merits, and it therefore becomes our duty to dismiss the case for want of jurisdiction. Ware v. Clark, 125 S. W. 618, and American Soda Fountain Co. v. Mason, 55 Tex. Civ. App. 532, 119 S. W. 714. We are not unmindful of the decision of this court in the case of Dunlap v. Broyles, 141 S. W. 289, bearing on this question. It will be noted, however, that in the case last mentioned we found a sufficiency in the record to show that the appeal had in fact been properly perfected from the justice to the county court, while there is nothing of the kind found in the record in this case.

As this case, because of the matters above discussed, is not before us in such way as to warrant our passing on the merits of the appeal, and we are therefore not called upon to pass on certain irregularities appearing in a paper filed in this court as a statement of facts, we nevertheless take this occasion to state that the same has upon its face many interlineations, changes, and additions from the way it was originally written, and while the changes and interlineations mentioned clearly indicate that they are beneficial to appellee, and therefore were unquestionably made at the instance of appellees' counsel, as a means of relieving this court from the duty and responsibility of passing upon such delicate questions, and also to relieve counsel on either side from the embarrassment necessarily arising from such changes appearing on the face of a statement of facts, as might not be remembered by him if his attention were thereafter called to them, we think that sound public policy, as well as the spirit of the statute and court rules referring to such matters, requires that a statement of facts filed in an appellate court should be clear of unexplained interlineations or alterations of any kind, to the end that it show on its face absolute verity and regularity; and we take this occasion to state that this court will feel constrained to refuse to consider a statement of facts that does not present such verity upon its face. We suggest that, in the event of interlineations or alterations in a statement of facts after its preparation, it would be an easy matter for counsel, by agreement contained therein, to call attention to the same in such way as that the statement of facts, in connection with the agreement thereto, would show the changes were made before its execution.

Because this court is without jurisdiction to dispose of this appeal on its merits, the cause will be dismissed, and all costs incident to the attempted appeal will be taxed against the appellant and his sureties on his appeal bond; and it is so ordered.

On the Merits.

On February 10, 1912, we dismissed this cause, because the record failed to show jurisdiction to try the same on its merits by the county court of Sherman county, in a written opinion wherein we also referred to irregularities apparent upon the statement of facts filed in the cause. Since that time, by proper proceedings, the record has been so supplemented as to show that the appeal from justice to county court had in fact been properly perfected, and proper transcript thereof is now on file in this court, and there has also been filed in this court an instrument, executed by counsel for appellant and appellees, showing that the apparent irregularities in the statement of facts, which consist in interlineations, were actually made before the statement of facts was agreed to and filed in the court below.

The record in this case shows that early in March, 1910, appellees, learning that appellant desired to have a well drilled on his ranch, approached him in the town of Stratford with a view of procuring the contract for drilling same; that appellees were willing to drill the well at 50 cents a foot for the first 200 feet and 75 cents per foot for all over that depth, provided appellant would board appellees and feed their team during the progress of the work. Appellant was willing to give 50 cents per foot for the first 200 feet and 75 cents per foot for...