Peoples v. Evans

FISHEB, Chief Justice. We overrule the motion to dismiss the appeal. It appears from the condition of the docket that this case will not be reached during the present term of the court; and, in keeping with a ruling heretofore made, we do not think the failure to file the briefs in the court below within the time required by the statute will résult in any prejudice to the rights of the appellees. We have heretofore held that that provision of the statute requiring briefs to be filed within a certain time is only to be rigidly enforced when it appears that the appellee will be injured on account of the failure to file the briefs within the time required. As the case will not be reached during the present sitting of the Court, it is clear that the appellants will have ample time to file briefs if done within a reasonable time, which is hereby accorded them, and if so done the appellees will have plenty of time to reply before this cause can possibly be submitted. Therefore, the motion to dismiss for failure to comply with the rule to file briefs in the court below, will be overruled. We also overrule that ground of the motion to dismiss for failure to send up the original statement of facts. The transcript does contain, as stated by appellees, a copy of the statement of facts, and there did not accompany the record on the day that the transcript was filed in this court the original statement of facts, as required by the Act of May 25, 1907, on page 59 of the Session Laws for that year; but in reply to the motion to dismiss on this ground, the appellants have filed in this court the original statement of facts, which filing was within the time required by law for filing the original transcript in this court. We regard this as an answer to this ground of the motion to dismiss. But we sustaih appellees’ motion to strike out the statement of facts on the ground that it was not prepared in accordance with the present law upon that subject. Most of the statement of facts embraces questions and answers, and was prepared subsequent to the time that the last Legislature amended the law relating to the preparation of statements of facts. There is some evidence which seems to be in narrative form, as required by the present law, but we can not dissociate it from the other evidence in the record that is in response to questions asked and which is in the nature of answers thereto. Opperman v. Petri, 107 S. W., 1142. A correct solution of the questions raised by the facts can not well be determined unless we consider all the evidence stated in the record bearing upon the question in issue, and, as most of this evidence is in the objectionable form alluded to, we have thought it proper to strike out the entire statement of facts. Therefore the motion will be granted as to striking out the statement of facts, and will be overruled as to dismissing the appeal.