Hill v. Kincaid

MOURSUND, J. A. J. Kincaid sued Joe L. Hill in justice’s court for $170, alleged to be a balance due as commission for the sale of land, and recovered a judgment for said amount, and upon appeal to the county court judgment was again rendered for Kincaid in the same amount. Hill pleaded that he was not the owner of the property, but was only the agent of and acting for the owner, and that this was known by Kincaid prior to the transactions between them, and he now contends that the judgment is contrary to the undisputed testimony, or at least that the great preponderance of the testimony shows that he is not liable to Kincaid. The transcript was filed in this court on August 25, 1916, unaccompanied by any statement of facts. On October 2, 1916, the statement of facts was presented to the clerk of this court for filing, and he declined to file it without an order of court. No motion was filed requesting permission to file such statement of facts until February 9, 1917, and such motion was submitted on the same day the ease was submitted. We are therefore requested to permit a statement of facts to be filed after the case has been briefed and submitted. In addition, no excuse is offered, except oversight, for the failure to file it with the transcript, and no excuse is offered for so long delaying filing motion in this court. Under the circumstances, there being no agreement by defendant in error that the statement of facts be filed and considered, we overrule the motion for permission to file the same. Heflin v. Railway, 106 Tex. 23, 155 S. W. 188; Patrick v. Pierce (Sup.) 183 S. W. 441; Rule 22, Courts of Civil Appeals (142 S. W. xii). There being no statement of facts in the record, the assignment must be overruled. Judgment affirmed.