Willis v. Smith
| Decision Date | 26 April 1897 |
| Citation | 40 S.W. 401 |
| Parties | WILLIS et al. v. SMITH et al. |
| Court | Texas Supreme Court |
Action by William Kattner against Virginia B. Smith and others; P. J. Willis & Bro. impleaded. A judgment in favor of defendants was affirmed by the court of civil appeals (39 S. W. 377), and P. J. Willis & Bro. bring error. Reversed.
Eugene Williams, for plaintiffs in error. H. N. Atkinson, McDowell, Miller & Hawkins, T. C. Taylor, M. S. Duffie, and A. S. Hawkins, for defendants in error.
The term of the district court at which the judgment in this case was entered closed on August 15, 1895. The statement of facts, as shown in the record before us, has the following file mark, "Filed August 15, 1895," signed by the proper clerk. Appeal was taken to the court of civil appeals for the Third supreme judicial district by appellants, P. J. Willis & Bro. Appellee Virginia B. Smith filed in the court of civil appeals a motion to strike out the statement of facts because it was in fact filed after the adjournment of the court, although it appeared to have been filed during the term. This motion was supported by the affidavit of two of the attorneys engaged in the case in the court below, and by the clerk of the court in which the statement of facts was filed. The court of civil appeals sustained the motion to strike out statement of facts, and affirmed the judgment of the court below. Application for writ of error was made to this court by P. J. Willis & Bro. upon several grounds; among others, that the court of civil appeals erred in striking the statement of facts from the record of the case. This presents the only question that it is necessary for us to act upon. The court of civil appeals was bound by the record as it appeared in the transcript made by the clerk of the district court and duly certified, and had no authority to disregard that record on the ex parte affidavits presented to it. If the parties desired to get rid of the statement of facts, they might have asked in the court of civil appeals a suspension of the proceeding until the proper action could be taken in the district court, but it was error in the court of civil appeals to act upon the question under the circumstances. Boggess v. Harris (Tex. Sup.) 39 S. W. 565. The case last cited is directly in point. It was alleged in that case that a statement of facts had been changed by interlining certain words therein after it...
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