Wichita Building Corporation v. Lenz
| Decision Date | 02 October 1970 |
| Docket Number | No. 17136,17136 |
| Parties | WICHITA BUILDING CORPORATION et al., Appellants, v. Al LENZ et al., Appellees. |
| Court | Texas Court of Appeals |
Douthitt & Ritter, and Robert J. Ritter, Wichita Fallas, for appellants.
Nelson, Montgomery & Robertson, and Bill E. Gowan, Wichita Falls, attorney for appellee, Thomas H. Lewis.
This appeal is by writ of error complaining of the action of the trial court in dismissing the suit for want of prosecution. It is contended that the court erred in dismissing the case without giving the plaintiffs an opportunity to explain the reasons for the delay in bringing the case to trial.
The record before us contains no statement of facts, findings of facts or conclusions of law. Only the transcript and the briefs are before us. The transcript contains some affidavits. The record does not reflect that the affidavits were ever presented to the trial court for its consideration and ruling. The persons who made the affidavits were not brought before the trial court to offer testimony on any of the matters set forth in the affidavits.
It is improper in such a proceeding and under such circumstances as are here involved to introduce evidence in this court by way of affidavits placed in the transcript.
The case was dismissed by the trial court on his own initiative. It was one of many cases, listed on the court's docket for dismissal, which were dismissed on the same date for the same reason .
We will not pass upon the merits of the appeal because we are of the opinion that it should be dismissed for reasons hereinafter discussed.
It is deemed appropriate, however, to state that we would be required to affirm on the record before us because the vehicle employed to prevent the matter to this court for review is inadequate for that purpose. Some of the authorities which lead us to this conclusion are cited below.
The case of Gracey v. West, 422 S.W.2d 913 (Tex.Sup., 1968) involves a case of dismissal under similar circumstances. For further discussion see Vol. 4, McDonald Texas Civil Practice, p. 1359, § 17.19 (Reinstatement), and p. 1484, §§ 18.24 et seq. (Bills of Review); Finley v. Finley, 410 S.W.2d 818 (Tyler Civ.App., 1966, ref., n.r.e.); and Cathcart v. Childers, 296 S.W.2d 340 ().
Our jurisdiction is directed to the correction of errors committed in the course of proceedings prior to and connected with the rendition of the judgment by the trial court and we are confined to the record as it is made in the trial court.
The appellant must present this court a record which is sufficiently full to show clearly the action of the trial court and the error complained of. Upon failure to make such presentation there is nothing before this court to review.
Boyd v. Robinson, 304 S.W.2d 430 (); Jones v. Elliott, 259 S.W.2d 288 (El Paso Civ.App., 1953, ref., n.r.e., 153 Tex. 68, 263 S.W.2d 250).
We next consider the motion to dismiss the writ of error because it was not sued out within six (6) months after the final judgment was rendered.
The record reflects that the final judgment was rendered and signed by the trial court on September 1, 1969.
Article 2255, Vernon's Ann.Civ.St., provides that, 'The writ of error, in cases where the same is allowed, may be sued out at any time within six months after the final judgment is rendered.'
In American Bankers' Ins. Co. v. Flowers, 64 S.W.2d 806 (), it was held that 'A writ of error is 'sued out,' within the meaning of the statute, when the petition for the writ and the bond, or affidavit in lieu thereof, are filed with the clerk of the court rendering the judgment.'
'And where a statute or rule requires two steps in order to perfect an appeal, the taking of only one of them is insufficient.' 3 Tex.Jur.2d, pp. 500--501, § 243, and authorities there cited.
Rule 359, T.R.C.P., provides that 'The party desiring to sue out a writ of error shall file with...
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