Supreme Commandery Knights of Golden Rule v. Rose

• Court: Texas Supreme Court
• Writing for the Court: WILLIE
• Citation: Supreme Commandery Knights of Golden Rule v. Rose, 62 Tex. 321 (Tex. 1884)
• Decision Date: 07 November 1884
• Docket Number: Case No. 1763.
• Parties: SUPREME COMMANDERY KNIGHTS OF GOLDEN RULE v. SARAH ROSE ET AL.

62 Tex. 321

SUPREME COMMANDERY KNIGHTS OF GOLDEN RULE

v.SARAH ROSE ET AL.

Case No. 1763.

Supreme Court of Texas.

Nov. 7, 1884.

APPEAL from Kaufman. Tried below before the Hon. Green J. Clark.

Manion & Adams, for appellant.

W. H. Allen, for appellee.

WILLIE, CHIEF JUSTICE.

This cause is brought here upon a single assignment of error, to the effect that the court erred in refusing to state in writing its conclusions of fact separate from its conclusions of law, as requested by the appellant's counsel.

There is in the transcript a motion filed by appellant's counsel which amounts to such a request, but there is nothing to show that it was ever brought to the attention of the court, or insisted upon by the counsel making it.

We are asked to infer that it was refused because there is in the record no statement by the judge of his conclusions of law or fact.

We do not think that we are authorized to make such an inference.

Every ruling of the court made a ground of error should plainly appear in the transcript, and nothing should be left to inference. Our rules require that all rulings upon incidental motions, and upon other proceedings in the case (with certain exceptions), which are sought to be revised, must be made the subject of a bill of exceptions, or they will not become a part of the record in the cause. Rules Sup. Ct., No. 55.

The exceptions to this requirement are plainly set forth in rules 53 and 54, and do not include a motion like the present; but such a motion is clearly embraced in the general rule above stated.

This court has held that it will not presume that a demurrer was acted upon by the court when the record does not show that fact, but, on the contrary, the presumption would be that it was waived. Floyd v. Rice, 28 Tex., 341;Rowlett v. Fulton, 5 Tex., 458;Chambers v. Miller, 9 Tex., 236.

It has also held that it will not revise a ruling refusing a continuance, although the record plainly showed such refusal, unless a bill of exceptions was taken to the action of the court. 29 Tex., 191;25 Tex., 53;16 Tex., 93.

A motion of the kind we are considering, and the action of the court upon it, do not, according to our rules, constitute a part of the record proper, and the proper practice is to make it the subject of a bill of exceptions.

When the ruling of the court upon the motion is not made to appear affirmatively, we must presume that the motion was not insisted upon or brought to the attention of the court. Otherwise...