Withee v. Another
| Decision Date | 01 January 1852 |
| Parties | WITHEE v. MAY AND ANOTHER. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
It is not competent for the judge to make up a statement of facts after the adjournment of the term.
Where the parties fail to agree on a statement of the facts the judge should during the term make out a statement from the statements furnished him by the parties and his own knowledge; if only one party furnish a statement, then from such statement and his own knowledge, and sign and seal the same, and cause it to be filed in the records of the cause as a part thereof; otherwise it will not be considered. (Note 34.)
Appeal from Titus. The record in this case showed what purported to be a statement of facts made out and signed by the presiding judge after the adjournment of the term at which the suit had been tried, and after the judge had commenced a term in another county. The circumstances were disclosed by the judge as follows:
J. C. Everett, for appellant.
S. F. Moseley and O. C. Hartley, for appellee.
By reference to the statute, Hartley's Dig., art. 788, it will be seen that the statement of the facts is defective and wanting in the most essential requisites of the law. It was not signed by the judge during the term. It was not by the statement furnished by both parties and from his own knowledge, but from the statement furnished by the defendant's counsel, and after the adjournment of the term.
The judge did not seal it and order it to be filed in the records of the court as part thereof.
If the counsel could not agree, and one of them could not or would not furnish the judge a statement, and the judge had during the term of the court made out a statement from the statement of one and his own knowledge of the facts, and complied with the other requisites of the statute, it would have been sustained as a substantial compliance with the requisites of the law. As presented, however, we must reject it entirely as no part of the record. (See 1 Tex. R., 77; Id., 192.)
The facts not being before us, and there being no bill of exceptions allowed bringing any of the supposed errors of the court before us for consideration, excepting the one so...
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Lacey v. Ashe
...a statement signed by the counsel of one party only, and approved and signed by the judge, will not be received as part of the record. 8 Tex. 160;13 Tex. 140. Where the attorneys of the parties agree upon a statement of facts, or where they respectively submit statements to the judge, a pre......
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Drake v. State
...prescribed in articles 1377 and 1378, requiring the statement of facts to be certified and filed "during the term." The case of Withee v. May, 8 Tex. 160, cited by counsel for defendant, is not applicable, because decided prior to the enactment of article 1379, when the statute in all cases......
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Mayo v. Goldman
...the statement of facts presented to him by appellant, as he had already made out or adopted another, which he had the right to do. Withee v. May, 8 Tex. 160; North v. Lambert, 3 Willson, Civ. Cas. Ct. App. § The other errors assigned by appellant relate to the charge of the court, and canno......
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