Schulz v. Boyd

LOONEY, J. Defendant in error moves to strike the statement of facts from the record for the following reasons: (1) Because it was filed after the expiration of time allowed by law, without showing the exercise of due diligence to file in time. We have examined the showing made by plaintiff ,in error, and are satisfied that due diligence was exercised under the circumstances; therefore overrule this contention. 2. The second ground urged is that the statement was not agreed to by the parties. At the time attorney for defendant in error signed the statement, he wrote above his signature, to this effect, that he agreed to it as a statement of the evidence adduced oh the hearing of the motion for ¿ new trial, but did not agree that it was a statement of the evidence introduced on the trial of the case on its merits. The statement does not purport to contain the evidence upon the trial of the cause, but states specifically that it con *484 tains only tile evidence adduced on the hearing of the motion for a new trial. This being true, the statement can he considered only in connection with the court’s action on the motion for a new trial, and, as the parties agreed that it was a correct statement of the facts on said hearing, we overrule this ground of the motion. 3. The third ground of the motion to strike is based on the contention that the statement was not approved and signed by the judge who presided at the trial. Judge Rawlins, the regular judge of the county court of Dallas county at law No. 2, who presided at the trial of the cause, was absent on a vacation and Judge Paine L. Bush, judge of the. county court of Dallas county at law No. 1, was holding county court at law No. 2, under authority of article 1970 — 27, Vernon’s Anno. Oiv. Stats., vol. 4, p. 460, which provides that: “The judge of the County Court of Dallas County at Law No. 1, and the judge of the County Court of Dallas County at Law No. 2, may hold court for or with one another.” While thus holding court for Judge Rawlins, the statement of facts was presented to Judge Bush for approval, which he did by signing as follows, “Paine L. Bush, Judge Co. Ct. Dallas Co. at Law No. 1, sitting for Hon. John A. Rawlins, Judge Co. Ct. Dallas Co. at Law No. 2.” Judge Bush’s authority to hold court for Judge Rawlins wás not restricted to the performance of particular acts, but comprehended all acts pertaining to the business of said court, which included, not only the trial of causes, but the transaction of all incidental judicial business, just as the regular judge could have transacted had he been presiding. To hold otherwise would, in effect, write into the statute limitations the Legislature did not see fit to write. The phrase, “the judge,” authorized by article 2243, R. S. 1925, to approve and sign statements of facts, means, not only the regular judge who presides at the trial of a cause, but also any judge who may be legally authorized to hold said court. The approval of a statement of facts by the judge is one of the most important items of business incident to the trial of a cause that the judge is called upon to perform, for, if the litigant should be deprived of the statement, his appeal may prove of no value. It may be correctly said that the judge who presides and hears the evidence is better prepared to readily judge of the correctness of the statement of facts when presented for approval than a judge called to the bench later; nevertheless, any other judge clothed with authority and confronted with this duty may readily find ways and means of discharging the same in a satisfactory and practical manner. Just such a contingency is contemplated and provided for in article 2288, R. S. 1925, where, on the death of the regular judge, it is made the duty of his successor to approve statements of facts and bills of exceptions in cases tried by the deceased. • We hold that Judge Bush was authorized to approve and sign the statement of facts. Our construction of this statute, we believe, is in harmony with the rule announced in the following cases, viz.: Ex parte Angus, 28 Tex. App. 293, 12 S. W. 1099, 1100; In re Southern Wisconsin Power Co., 140 Wis. 245, 122 N. W. 801, 808; Morriss v. Virginia Ins. Co., 85 Va. 588, 8 S. E. 383, 387. The motion to strike the statement of facts from the record is overruled. Overruled.