Trinity & S. Ry. Co. v. Lane
| Decision Date | 13 March 1891 |
| Court | Texas Supreme Court |
| Parties | TRINITY & S. RY. CO. v. LANE. |
In the opinion in this case the writer fell into the error of saying in the comment upon the statement of facts "that it is probable that, if counsel had tendered the judge a statement of the evidence approximately correct, in which the alleged contract was copied, or its substance stated, the judge would have utilized so much of the statement at least as related thereto, and would have incorporated it into that prepared and certified to by him." The transcript shows that counsel did this exact thing, and we feel it due to them that we should make the correction. If, as bearing upon the question then before us, we had attached any importance to the matter of diligence or neglect on part of counsel in attempting to get a correct statement of facts, it would probably have led to a more careful inspection of the record, and the error would have been avoided. But, after careful consideration in more than one case, we have decided that since the passage of the statute which permits a statement of facts under certain circumstances to be filed after the lapse of 10 days from the adjournment of the court, no reason exists why a party who has used diligence to procure a statement of facts may not compel by mandamus the trial judge to prepare and file one, when he has failed to do so. Reagan v. Copeland, 14 S. W. Rep. 1031, (Tyler term, 1890;) Washington v. Eckart, 15 S. W. Rep. 1047, (Galveston term, 1891, on motion.) The statement of facts in this case being upon its face manifestly incomplete, we think the remedy of the appellant was to have applied to this court for a writ of mandamus to compel the judge to complete it; that the failure of the judge to do his duty in this respect was held in the case first cited above as no ground for reversing the judgment. The other grounds of the appellant's motion for a rehearing were thoroughly considered in disposing of the case, and need not be again discussed. We see no reason to change our former opinion.
The motion for a rehearing is overruled.
To continue reading
Request your trial
-
Ed. Maloney v. Winston Bros. Company
...647, 8 S.W. 900, 11 S.W. 251; Missouri P. Ry. Co. v. Mackey, 33 Kan. 298, 6 P. 291; Trinity & S. Ry. Co. v. Lane, 79 Tex. 643, 15 S.W. 477, 16 S.W. 18; O'Donnell v. American Sugar-Refining Co., A.D. 307, 58 N.Y.S. 640; Baltzer v. Chicago M. & N. R. Co., 89 Wis. 257, 60 N.W. 716; Chicago etc......
-
On Rehearing
...8 S.W. 900, 11 S.W. 251; Missouri Pac. Ry. Co. v. Mackey, 33 Kan. 298, 6 Pac. 291; Trinity & S. Ry. Co. v. Lane, 79 Tex. 643, 15 S.W. 477, 16 S.W. 18; O'Donnell v. American Co., 58 N.Y.S. 640; Baltzer v. Chicago M. & N. R. Co., 89 Wis. 257, 60 N.W. 716; Chicago etc. Co. v. Rembarz, 51 Ill.A......
-
Arrowsmith v. Nashville & D. R. Co.
...v. Eckford, 71 Tex. 274, 8 S.W. 679; Railroad Co. v. Culberson, (Tex. Sup.) 10 S.W. 706; Railway Co. v. Lane, 79 Tex. 643, 15 S.W. 477, and 16 S.W. 18; Nelson v. Railroad Co., 26 Vt. Railroad Co. v. Chasteen, 88 Ala. 591, 7 South. Rep. 94; Ricketts v. Railway Co., 85 Ala. 601, 5 South. Rep.......
-
Parrish v. Wright
...26 Tex. 188; Taylor v. Campbell, 59 Tex. 315; Whitaker v. Gee, 61 Tex. 217; Trinity & S. Railway v. Lane, 79 Tex. 643, 15 S. W. 477, 16 S. W. 18; McDowell v. Fowler, 80 Tex. 587, 16 S. W. 431; M., K. & T. Railway Co. v. Fisher [Tex. Civ. App.] 47 S. W. 284, writ of error denied; Williams v.......