Bull v. S.A. A.P. Ry. Co.

ON MOTIONS. The appellee has filed motions in this case to strike out the statement of facts and also to strike out the brief of the appellant and affirm the judgment. Both motions will be overruled. It is improper practice to date back the file mark as was done by the clerk at the direction of the judge in filing the statement of facts in this case. The written instructions to do so in the form of a letter has been incorporated in the record by order of the district judge, and may be considered as a part of his approval, and makes it appear on the face thereof that the statement of facts was actually filed more than ten days after adjournment, the time allowed by the court, and it so appearing, this court can pass upon the question which otherwise would have been one for the trial court to determine. The statement of facts should be stricken out but for the fact that it appears from the recitals in the vacation order on direction of the judge that it had come into his hands in time, but that owing to the disagreement of the parties he delayed action in order to get the stenographer's notes before making his statement. It was thus delayed without the fault of the appellant, and if we were to strike out the statement upon the appellee's motion and the appellant should ask that it be reinstated we would have to grant his request upon the showing above stated, hence the motion to strike out should not prevail. We do not sustain the motion to strike out the brief, because although not filed in accordance with the rules the appellee does not appear to have been injured thereby, but the court reserves the question of the sufficiency of the brief to require a consideration of the assignments of error to be passed on when the case has been submitted. Overruled. *Page 548 ON THE MERITS.