Cussen v. Lynch , 1922 Tex. App. LEXIS 298 ( 1922 )

^* Writ of error refused February 14, 1923.

On Motion to Strike Out Statement of Facts. The appellee moves to strike out the statement of facts filed in this case: (1) Because pages 61 to 140 are duplicates of pages 1 to 61; (2) that pages 1 to 61 include all the testimony introduced on the defendant's plea of abatement, which it is asserted should have been presented by a bill of exceptions; (3) that the agreement of counsel shows it was not agreed to as a statement of facts, but that it is a statement of the evidence admitted by the court upon both the plea in abatement and upon the merits; (4) because the trial judge did not approve it as a statement of facts, but as the evidence upon both the plea and upon the merits; (5) because not prepared in accordance with the statutes and rules, which require the facts proven by evidence to be stated, and that they shall be stated and agreed to, and not the evidence establishing the fact, etc.

The appellee, Lynch, as bishop of the diocese of Dallas, alleged that all the property in such diocese is vested in him as such bishop; that the defendant Cussen unlawfully entered and took possession of certain property, describing it, and praying for judgment therefor. The appellee, defendant below, pleaded in abatement of the suit that the matters in controversy, and upon which plaintiff bases his right of recovery, are pending on appeal for their determination be fore the proper church authorities under the laws and canons of the church, and that under such laws no civil suit can be prosecuted pending an appeal until final decision, which has not been had upon such appeal, also filing their answers to the merits of the case. On the 27th day of January, 1922, under agreement of the parties, the plea in abatement was heard before the court and before a hearing upon the merits of the case. The court heard evidence on the plea, and after doing so overruled the plea and ordered the case to proceed to trial upon the merits. The defendant at that time duly excepted to the action of the court, which exception was entered in the judgment of the court overruling the plea. The trial of the case was had up-on the merits January 31, 1921, and resulted in favor of the plaintiff, from which judgment this appeal is prosecuted. The term of the court at which the trial on the abatement and the merits was had began January 9, and adjourned February 4, 1922.

The first ground stated in the motion is not strictly true. If there are duplicates of the facts in some particulars they are not specifically pointed out. The certificate of the stenographer is as follows:

"I, W. R. Frazee, court reporter for the Thirty-First judicial district of Texas, hereby certify that the above and foregoing 140 pages contain a true and correct transcript of all the evidence admitted by the court in the trial of the above cause. Pages 2 to 60, inclusive, contain the evidence in support of and against defendant's plea in abatement. Pages 61 to 140, inclusive, contain the evidence admitted in the trial of said cause on the merits, as reflected by the shorthand notes taken by me on the trial of said cause; the oral testimony being set out in narrative form directly from said shorthand notes, and the English translation from the Latin of the various exhibits being as originally translated from the witness stand, or as furnished in written translation by the parties."

The agreement of the attorneys for the parties is as follows:

"We, the attorneys representing plaintiff as defendant in the above cause, having read the foregoing transcript, and having found the same to contain a true and correct statement of all the evidence admitted by the court in the trial of said cause, both upon plea in abatement and on the merits, hereby agree that the same may constitute and be the statement of facts in said cause, and be used as such for purpose of appeal."

The trial judge's certificate is as follows:

"The above and foregoing statement of facts having been read by me, and having been agreed to and approved by the attorneys representing plaintiff and defendant in said above cause, the same is hereby approved and ordered filed." Signed by the judge.

There are two captions to the statement of facts, the first reading:

"Be it remembered that on the 27th day of January, 1922, the same being one of the days of the regular January term of the district court of Hemphill county, Texas, there came on to be heard in the above numbered and entitled cause the defendant's plea in abatement, whereupon the following facts were heard by the court, to wit."

Then follows the statement of facts on the plea in abatement down to page 61, where the following caption is entered:

"Be it remembered that on the 30th day of January, 1922, the same being one of the days of the regular term of the district court of Hemphill county, Texas, the court having heard the evidence adduced in support of defendant's plea in abatement, there came on for trial on the merits the above entitled and numbered cause, whereupon the following facts were admitted in evidence by the court, to wit: [Setting out the facts.]"

We have not examined the 140 pages of the statement of facts, to ascertain if there are duplicates made of some particular portions. We think, however, we may say from our examination that the ground first stated in the motion is not literally true. It will be noted from the agreement of counsel to the statement of facts that all the evidence had upon the plea and the trial on the merits may constitute the statement of facts and be used as such for the purpose of appeal. From this agreement and the stenographer's certificate we infer it was the purpose, as near as may be, to use the evidence had upon either trial upon the issues in both the abatement and the merits, without reference to whether it was offered in one or the other of such trials; that this was done in order to avoid the necessity of repeating in the two statements, where in both the same evidence was offered. Much of the record consists in ecclesiastical orders, notices, letters, and the like, which doubtless were material in both trials. The two trials could have been had together, or they could be tried separately. Having been tried separately at the same term of court, with only three days intervening, manifestly one statement of facts was a convenient method in preparing the appeal.

As we understand, the parties may make or agree to a statement of facts prepared in any other manner than that pointed out by the statutes, and when so made and agreed to it is binding upon the appellee, and he has lost his right to object that the provisions of articles 1924 and 2070 were not observed in the preparation of the statement of facts. Railway Co. v. Prazak (Tex.Civ.App.) 170 S.W. 859; Buffalo Bayou Co. v. Lorentz (Tex.Civ.App.) 170 S.W. 1052; Fort Worth Publishing Co. v. Armstrong (Tex.Civ.App.) 175 S.W. 1113. There may be lack of harmony in the three cases cited on other points, but we believe the proposition stated by us has support in each of the cases. It would not be just, as we conceive the matter, to permit a party to agree to a statement of facts had upon trial, and after it is too late to prepare and file another, because of some possible repetition, to strike it out as not being in accordance with the statute or rules in that particular. The specific repetition, if any, it seems to us, should be pointed out in the motion, objecting to it in any event.

The main contention we apprehend is that the testimony on the plea in abatement must be brought up by a bill of exceptions separate form the statement of facts. In the first place, a plea in abatement and the judgment of the court thereon is a matter of record and under article 2062, Revised Civil Statutes, a bill of exception was not required to bring up the ruling of the court thereon. If the matter pleaded required proof to establish the facts, the evidence thereon for and against can be brought up in a statement of facts This we believe to be established by the various courts. Holmes v. Coalson (Tex.Civ.App.) 178 S.W. 628, where the question is thoroughly discussed by Mr. Justice Dunklin, in an unanswerable argument, we think. Trevathan v. Hall Son (Tex.Civ.App.) 209 S.W. 447, follows the above case. This court recognized the right to bring up the evidence in a statement of facts which was had upon a motion to set aside a verdict. However, we regarded such evidence as not being part of the trial on the main issue, and that as it partook in its nature of a bill of exception, and as a bill of exception, as announced by the Court of Criminal Appeals, was required to be filed during term time, we concluded to follow the holding of that court. Smith v. Texas Power Light Co. (Tex.Civ.App.) 206 S.W. 119. In the case of St. Louis, etc., Railway Co. v. Vick (Tex. Civ App.) 210 S.W. 247, our position as to the time of filing the statement of facts on the motion was criticized and dissented from. The writer of this opinion also wrote the former opinion of this court, and now takes occasion to assent to the able opinion of Mr. Justice Moursund in the Vick Case, supra.

In these cases and in others that might be cited, it is the rule, as we understand, that evidence taken upon collateral issues to the main trial may be brought up either by bill of exception or in the statement of facts. On this point we refer to the Vick Case. Also as to bringing up bills of exception by the statement of facts under our practice we refer to a very full discussion of this matter by our Supreme Court in Stephens v. Herron, 99 Tex. 63, 87 S.W. 326. In Roundtree v. City of Galveston,42 Tex. 612, our Supreme Court held a bill of exception was not a statement of facts under our procedure, but said:

"In our liberal practice, discarding mere matters of form, the statement of facts may be made to serve the purpose also of a bill of exceptions; for the reason that it has upon its face the concurrent assent of the parties and the court."

An exception having been reserved to the ruling of the court on the plea in abatement at the time it was made, which was noted in the order of the court overruling the plea, was a sufficient exception thereto. Railroad Co. v. Weber, 109 Tex. 383, 210 S.W. 677. The evidence on the trial of the plea was agreed to in a statement of facts for the entire trial under the statute and rules in order to bring up the question on appeal on the action of the court on the plea as well as upon the merits. An appeal could not have been prosecuted from the interlocutory order of the court on the abatement proceedings. It seems to us the method adopted in this case is simple and direct, and one well calculated to obtain a decision, both on the abatement proceedings and upon the trial on the merits, and should be commended rather than condemned.

It also seems that, because the evidence is set out, and not the facts established by the evidence, that the appellee contends on that ground that the statement of facts violates the statute and rules. The practice of agreeing to facts established is to be encouraged; but, if counsel cannot agree upon such facts, we do not know of any rule or statute requiring the courts to compel such agreement, under the penalty of having the statement stricken out. Article 2068, R.C.S., on this point provides:

"Where it is agreed by the parties to the suit, or their attorneys of record, that the evidence adduced upon the trial of the cause is sufficient to establish a fact or facts alleged by either party, the testimony of the witnesses and the deeds, wills, records, or other written instruments, admitted as evidence relating thereto, shall not be stated or copied in detail into a statement of facts; but the facts thus established shall be stated as facts proved in the case," etc.

If the facts are not agreed to by the parties as established by the evidence, certainly it is proper to set out the evidence adduced upon the issues to establish the facts sought to be proven.

The motion will be overruled.