Ross v. McGowen

Willie, Chief Justice. It is urged by counsel representing the appellees in this cause, that the statement of facts found in the record should not be considered by the court, because it was made up and filed after the final adjournment of court, and no order had been made during term time allowing this to be done. The term ended, as appears by the caption of the transcript, on the 19th of May, 1882, and the statement of facts was signed by the judge on the 23d, and filed on the 25th of the same month. These, therefore, occurred within ten days after the close of the court; but there does not appear in the transcript any order of the court entered üp in term time, allowing the statement to be made up and filed after adjournment. This is an essential statutory requirement which must be complied with in all such cases, as we have already held in the case of McGuive v. Newhill, lately decided, and on the authority of that decision the present statement of facts will be disregarded, and the appeal considered as if it formed no part of the record. The only assigned errors that we are asked in the brief of appellant’s counsel to consider are the first and fifth; the one relating to the charge of the court, and the other to the proper conclusion to be drawn from the evidence. As there is no evidence before us, no notice can be taken of this fifth assignment. It has also been held in several cases by this court, that as a general thing we will not revise the charges of the court where there is no statement of the facts proved on the trial brought up with the record. This is the general rule, and the exceptions are few and well defined. It will be presumed that everything in the way of evidence that could have been legally introduced under the pleadings to sustain the verdict was actually proven on the trial; and if the charge is not so glaringly erroneous, taken in connection with the pleadings and the verdict, as to leave no doubt but that the finding of the jury was controlled by the improper instructions of the court, it will not be revised. McGaughey v. Bendy, 27 Tex., 534; Burt v. Alford, 22 Tex., 399; Birge v. Wanhop, 23 Tex., 441; Anding v. Perkins, 29 Tex., 348. The rule was thus laid down in Armstrong v. Lipscomb, 11 Tex., 649: “ When the facts as proved are not embodied in the transcript, the case stands here as if either no evidence had been introduced, or only such as had authorized the verdict; and that when facts to sustain the issue are not shown to have been proven, the instructions given or refused must be regarded as abstract propositions, and as such not authorizing a reversal of the judgment, when such judg [608] ment was in fact the only one from the evidence, or rather from the want of evidence, which could have been rendered.” The allegations of the petitions' of plaintiffs, filed in this cause, were amply sufficient to show that their homestead had never been abandoned, and to entitle them to the verdict which they obtained for its recovery. The charge of the court, so far from being glaringly erroneous, is conformable to the previous decisions of this court on the question of homestead abandonment. Cox v. Shropshire, 25 Tex., 116; Cross v. Everts, 28 Tex., 132, 133; Thomas v. Mullins, 50 Tex., 269; Woolfolk v. Rickets, 42 Tex., 358. The charge asked by appellant and refused by the court, even if embodying a correct principle of law—upon which, however, we do not propose now to express an opinion■—-must be considered as an abstract proposition, unsupported by facts, and as such its refusal does not authorize a reversal of the cause. If, under the circumstances of this appeal, we must treat the pleadings of the plaintiffs below as fully proved on the trial, tjiere was no fact in evidence to authorize the court to give this charge; for there is no such allegation as that the appellee Margaret McGowen ever dedicated or became satisfied with any other place as her homestead besides the one for which she brings suit. Meither can this appellee complain of the charge of the court as to the kind of verdict the jury should render in behalf of the intervenors against the appellee Ben McGowen, nor of the form of verdict which they did render in this respect. This part of the verdict was in favor of appellant, who ivas infcervenor below, and gave him all the monied judgment he was entitled to under the pleadings of appellees as against Ben McGowen, and the latter has not appealed, or in any manner complained in this court of any of the proceedings had in the cause. We find no error in the judgment of the court below, and it is affirmed. Affirmed. [Opinion delivered February 6, 1883.]