Miguez v. Blake , 37 S.W.2d 234 ( 1931 )

ELY, C. J.

Defendant in error applied for an injunction to restrain plaintiffs in error from erecting structures on her land and to prevent the obstruction of a certain street and alley, and for $500 damages. The injunction was granted, and plaintiffs in error commanded to remove all structures erected by them on the land of defendant in error, and enjoined from obstructing the alley and Fredericks-burg Road.

A judgment by default was rendered by the court against the plaintiffs in error, who were defendants in the lower court, who, however, after the trial agreed to the statement of facts. How the -defaulting parties became well enough acquainted with the facts to agree to the statement is not disclosed; 'nor is it clear as to why -the defendant in error agreed to any statement of facts with the plaintiffs in error. That statement of facts is made the basis of seven of the ten assignments of error. Out of the assignments have been evolved seventeen propositions. This is extraordinary following a judgment by default.

The statement of facts was agreed to and filed nearly eight months after the court adjourned, on Febuary 1, 1930.

Article 2246, Rev. Stats. of Texas, requires a statement of facts to be filed within eighty days after the adjournment of the court, or within ninety days from the date of judgment, in case the term of court was more than eight weeks in duration. The statute applies with equal force to cases of appeal and writs of error. Tex. Jur. §§ 475 and 478; White v. Taylor (Tex. Civ. App.) 11 S.W.(2d) 374; Martin v. Martin (Tex. Civ. App.) 229 S. W. 695. The statute is mandatory. Foster v. Bourgeois (Tex. Civ. App.) 253 S. W. 880, affirmed 113 Tex. 489, 259 S. W. 917; St. Louis Southwestern R. Co. v. McCord (Tex. Civ. App.) 199 S. W. 526. Numerous decisions hold that no such statement of facts can be considered. Section 478, .Tex. Jur. The approval of the statement of facts by the judge could not be deemed equivalent to an extension' of the time, because the statement was approved after the court had lost jurisdiction by the writ of error having been perfected to this court. The district judge had no authority to make any order in the case after the jurisdiction of this court had attached. There being no statement of facts, the seven -assignments of error based on the evidence must be discarded as without foundation.

This is not an action of trespass to try title, and in the prayer no adjudication of the title was sought, and consequently the judgment did not attempt to adjudicate the title, -but an injunction was sought to restrain plaintiffs in error from building obstructions on the land of the complainant and to prevent obstruction of a street and alley on which her. property was situated, and to command plaintiffs in error to remove structures erected on the land or on the street and alley.

The allegations of the petition were sufficient to sustain the judgment, and in the absence of a statement of facts it will be presumed that the evidence sustained the judgment rendered by the court.

There being no merit in any of the assignments of error, the judgment is affirmed.