Hunker v. Estes

HUFF, C. J. [1] We are unable to consider the statement of facts filed in this case. There is what purports to be two statement of facts — one is not a copy of the other. Both were filed in this court February 17, 1913, and both indorsed filed by the clerk of the district court of Collingsworth county, January 4, 1913. One is marked “original,” but this one has only the certificate of the court stenographer, and no agreement indorsed upon it, signed by the parties to the case, and no approval by the judge trying the same. Part of this statement is in question and answer form, and some three or four loose leaves pinned in the record. The other statement is not marked — either duplicate or original — and has no certificate from the clerk of the court that it is either the one or the other. The index calls for certain instruments which are not in the statement of facts. The attorney for appellee cites us in his brief to the pages of the statement of facts for certain instruments not found in the statement, and which the index calls for. The law provides that when a statement of facts is “agreed to by the parties and approved by the judge,” the duplicate shall be filed with the clerk, and the original sent up as a part of the record in the cause on appeal. It will be seen from the above statement nearly every provision of the law has been violated in one or the other of the statements on file. We cannot determine from the record before us that either is a true and correct statement of facts adduced upon the trial. The affirmative evidence, as appears from the face of the statements themselves, is that neither presents the case upon which the trial court passed. It may be said in passing, both parties in this case present the same as if the deed from Estes to White had been duly recorded, and that Hunker had notice thereof. The record fails to show such recording of the deed. It would be useless for us to try to dispose of the case with any degree of justice to either party in the condition in which we find the record. This court has held that a duplicate statement of facts must be filed with the clerk of the court where the case was tried,, and the original sent to this court. As seen, no original is sent to this court, agreed to by the parties, and approved by the judge. Witherspoon v. Crawford, 153 S. W. 633. There is an instrument here which does not appear to be either a duplicate or an original. Whatever it is, the index and the absence of a page from it shows it is not what it purports to be — a true and correct statement of the facts and evidence before the trial court. We cannot permit such total disregard of the statute as well as the rules. The brief of the respective parties evidently cites from a different statement to the one on file in this court. To permit such practice and overlook such a flagrant disregard' to the law and rutes would render the practice in this court too uncertain, and would open the door wide for the mutilation of the records of this court. Personally, the writer believes no statement should ever leave the clerk’s office of the trial court without his certificate, under his seal, that it is the original, and that the duplicate of the same is on file and kept by him in his office. The statement of facts is a part of the record, and should be safeguarded with all the care that other portions of the record are required to be kept. Heflin v. Railway Co. (Sup.) 155 S. W. 188. There is no such statement of facts in this case as we feel warranted in considering, and there is no finding of fact and conclusions of law filed by the trial court, and from an inspection of the transcript, no such error is apparent, requiring a reversal. The case will therefore be affirmed.