Unknown Heirs of Criswell v. Robbins

• Decision Date: 18 December 1912
• Citation: 152 S.W. 210
• Parties: UNKNOWN HEIRS OF CRISWELL et al. v. ROBBINS.
• Court: Texas Court of Appeals

152 S.W. 210

UNKNOWN HEIRS OF CRISWELL et al. v. ROBBINS.

Court of Civil Appeals of Texas. San Antonio.

December 18, 1912.

Appeal from District Court, Matagorda County; Wells Thompson, Judge.

Action by Fred S. Robbins against the Unknown Heirs of Criswell and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Gaines & Corbett, of Bay City, and W. H. Baldwin, of Rockport, for appellants. Thomas H. Lewis, of Bay City, and Lewis R. Bryan, of Houston, for appellee.

FLY, C. J.

This is an action of trespass to try title to the John Y. Criswell league of land in Matagorda county instituted by appellee against the unknown heirs of John Y. Criswell, deceased, the unknown heirs of James H. Criswell, deceased, the unknown heirs of Mary Jane Hadden, deceased, the unknown heirs of John Primm, deceased, the unknown heirs of John Elliott, Jr., deceased, the unknown heirs of Conrad Dietrich, deceased, C. R. Dietrich, Julia Owens and her husband, T. A. Owens, and Mary Clark and her husband, William Clark. All of the unknown heirs answered through their attorney ad litem by general demurrer, general denial, and plea of not guilty. The other defendants made like answers and further disclaimed as to all the land except an undivided interest of 560 acres, being the share of James H. Criswell in said league of land. A jury was waived and a trial by the court resulted in a judgment in favor of appellee against all of the defendants for the league of land, from which judgment C. R. Dietrich the Clarks, and the Owens gave notice of appeal. We think the findings of fact are sustained by the statement of facts and they are approved by this court, and they, with the facts hereinafter mentioned, will constitute the conclusions of fact of this court.

It appears that the judgment was rendered in this cause on June 15, 1911; that the term at which it was rendered was one that could continue for more than eight weeks; that the term ended by adjournment on July 14th; that on that day a transcript of the evidence was filed in the court by the official stenographer and was approved by the trial judge; that on July 16th the trial judge left the state and went to Virginia and remained out of the state of Texas until August 26th, and the statement of facts which "was based upon and in conformity with the statement filed July 14, A. D. 1911," was approved by the trial judge on September 16, 1911, at least three weeks after his return.

There are filed in this cause three documents purporting to contain a statement of the facts proved on the trial. The first, filed on July 5, 1911, has the certificate of the stenographer appended to it and nothing else; the second, filed on July 14, 1911, is certified to by the stenographer and approved by the trial judge; and the third filed on September 16, 1911, and agreed to by attorneys of all the parties and approved by the trial judge. The last statement of facts contains the bills of exceptions. An order was granted extending the time of filing the statement of facts and bills of exception for 30 days after adjournment; that is, until August 13, 1911. The term of court at which the cause was tried could by law continue more than eight weeks, and the 30 days granted by statute would have commenced at the time the judgment was rendered but for the order of the court. Before the expiration of the 30 days, namely, on July 25th, when appellants still have about 20 days of the time remaining, without any effort being made to prepare the statement of facts although the transcript of the stenographer was on file, an application was made to the judge, who was in Virginia, to grant an extension; the ground for such extension being that the official stenographer would be unable to prepare a transcript of the evidence. At that very time the transcript prepared by the stenographer was on file in the district court of Matagorda county, which had been approved by the district judge, and the latter states that the "statement of September 16, 1911, is based upon and in conformity with the statement filed July 14, 1911." No other stenographer's transcript of the evidence was prepared after the one filed on July 14, 1911. These facts are stated as bearing on the question of diligence, regardless of the attempted 40 days' extension made in Virginia.

The order of extension of 40 days was made during vacation and while the judge was absent from the state. If the law is correctly construed in Railway v. Cox (Sup.) 140 S. W. 1078, the order entered in vacation was invalid, and the attempted extension of time was futile and vain. Appellants state in their answer to the motion to strike out the statement of facts that the "decision of the Supreme Court in Pecos & N. T. R. R. Co. v. Cox (Sup.) 140 S. W. 1078, has no application or relevancy whatsoever to the facts in this case." If not, it would be hard to determine to what the opinion would apply. The following language from Hamill v. Samuels (Sup.) 133 S. W. 419, adopted in the Cox Case, seems to cover the case before us completely: "The language of the statute does not express that the order must be entered at the same term of the court at which the trial was had, but is general in its terms that it must be granted by an order entered of record, which we construe to mean that it must be entered in open court, or while the court is in session, but not necessarily during the term of the court at which the trial was had." The Cox Case has been followed in several instances. Hines v. Sparks, 146 S. W. 290; Harris v. Camp, 148 S. W. 597.

Appellants had ample time to have prepared a statement of facts during the 30 days granted to them after adjournment, but the record fails to disclose that any effort whatever was made to obtain a statement; but before one-third of the time was expired all energy was directed towards getting an additional extension of 40 days. All that has been said about the extension of time has been with a view to the bills of exceptions which are embodied in the statement of facts, for under the provisions of the Acts 32d Leg. c. 119, § 7, it is provided "that any statement of facts filed before the time for filing the transcript in the appellate court expires shall be considered as having been filed within time allowed by law for filing the same." What purpose the Legislature had in view in passing such a clause, which practically sets aside all of the other provisions as to the time in which statements of facts shall be filed and renders the question of extensions a mere abstraction, is utterly inconceivable. But there it is, and under its provisions the statement of facts, although filed beyond the time legally given by the court must be held to have been filed in time. But that provision would not lend any aid to the bills of exception embodied in the statement of facts, because they are not mentioned in the sweeping provision as to statements of facts. The bills of exceptions are still under the law as to extensions of time, as is apparent from the language of the law of 1911 which was in effect when this cause was tried on June 15, 1911. It follows that, although under the law of 1911 we are compelled to consider the statement of facts the bills of exceptions cannot be considered because filed out of time.

It has been the uniform rule in Texas that bills of exceptions may be incorporated in the statement of facts, but that they will not be considered unless the statement of facts is filed within the time prescribed by law for the filing of bills of exceptions. Howard v. Mayor, 59 Tex. 76; Railway v. Eddins, 60 Tex. 656; Tom v. Sayers, 64 Tex. 339; Ivey...