Bowie v. Lumbermen's Reciprocal Ass'n

O’QUINN, J. This suit was brought by appellee, the Lumbermen’s Reciprocal Association, in the county court of Jasper county, Tex., against Jim Bowie and his attorney, G-. L. Howell, to set aside an award of the Industrial Accident Board, made August 8, 1924. By this award appellee would have been liable to pay Jim Bowie for an injury to his foot and leg, received in the course of his employment with the Alexander Lumber Company in Jasper county, Tex. Appellants, Jim Bowie and G. L. Howell, answered by general demurrer, general denial, and cross-action, setting up (a) compliance with the statutory requirements for fixing liability on appellee;, (b) total disability for 44 weeks; (c) 90 per cent, permanent impairment and loss of the use of his foot; and (d) necessity for a lump sum payment. The case was tried to a jury upon special issues, upon the answers to which judgment was rendered in favor of appellee setting aside the award of the Industrial Accident Board and decreeing that appellants take nothing by reason of their cross-action as against appellee. Appellee objects to our considering the statement of facts filed herein, and moves that same be stricken, because said statement of facts was never filed in the trial [280] court below. Tbis motion will have to be. sustained. An examination of said record discloses that it was not filed in the court below. Article 2243, Revised Statutes 1925, requires that the statement of facts shall be filed with the clerk of the trial court. Appellants have filed in this court what is designated an explanation as to the statement of facts, not bearing the file mark of the trial court, which is as follows: “Comes now appellants in the above styled and numbered cause, and in reply to appellee’s motion to strike out statement. of facts respectfully shows to the court: “That said statement of facts was filed by the clerk of the county court of Jasper county, Tex., and if same does not bear the file mark of the clerk of such court, it is no fault of appellants, as they used sufficient diligence in having the same placed in the hands of said clerk of Jasper county, and was advised by' such clerk • that said statement of facts was filed in compliance with article 2243, as reflected by an original letter received from such clerk by Tom O. Stephenson, counsel for appellants, on January 22, 1926, such letter being attached hereto and made part hereof. “Wherefore, appellants respectfully pray the court that said statement of facts should not be stricken from the record, but, instead thereof, the same should be considered by this honorable court as a part of the record in said cause.” To this was appended some personal correspondence between counsel for appellants and the clerk of the court below. We are not authorized to consider ex parte statements of this kind as going to excuse a failure to comply with statutory requirements in the manner shown. In the state of the record, the statement of facts cannot be considered. Thomas v. Matthews, 51 Tex. Civ. App. 304, 112 S. W. 120; I. & G. N. Ry. Co. v. Reek (Tex. Civ. App.) 179 S. W. 699 (writ refused). There being no statement of facts nor findings of fact by the court, only such errors as are apparent of record can be considered. Beckham v. Williford (Tex. Civ. App.) 252 S. W. 229; Albers v. Roberts (Tex. Civ. App.) 155 S. W. 1001. We have carefully considered the record, and, no fundamental error appearing, the judgment must be affirmed, and it is so ordered. Affirmed.