City of San Antonio v. Ashton , 1911 Tex. App. LEXIS 112 ( 1911 )

I concur in overruling the motion for rehearing, but I think that the action of the court should be based not alone on the implied admission of the city attorney in the motion for new trial that some kind of notice was served on the mayor, because that admission must be greatly amplified and much read into it in order to make it comprehend a notice in writing, given in 90 days from the time of the injury, and containing all the requisites provided for in the charter. However, appellee has invoked the aid of the district judge and obtained an order from him to the effect that a written notice was introduced in evidence, but was inadvertently omitted from the record, and a certified copy of it is sent up from the trial court. That notice is full and complete, and I am unwilling to agree that this court cannot consider that notice as a part of the record in this case. It would be a sad commentary on the powers of the courts of Texas, and a travesty upon justice, if it is conceded that a clerical omission of an important paper on file in the trial court, which was used in evidence and omitted by an oversight from the statement of facts, could not be considered by this court. The proposition is intensified by the admission of the appellant that a notice was used in evidence that had been served on the mayor, and the trial court has identified and sent up a certified copy of it. I remember that it is said in Railway v. Lane,79 Tex. 643, 15 S.W. 477, 16 S.W. 18, that the law provides no means for amending a statement of facts, but in that case no effort whatever was made to obtain the missing paper, and the assertion that the Supreme Court and trial court were unable to correct an admitted error was not called for and was merely obiter dictum. I do not think that a record should be amended by inserting the testimony of a witness, but as to documentary evidence, as to existence of which there can rarely be any contention, I am unable to agree that such an omission cannot be remedied, and that a litigant should be deprived of his judgment.

The rule is, I think, correctly expressed in Elliott's Appellate Procedure, § 548, where it is stated in regard to the authority of trial courts to correct their records: "It seems clear to us that it is unduly stretching the general rule to deny that authority, and that it is a violation of the principle that a court may cause its record to speak the truth. The court in directing amendments and corrections makes no decision upon the questions involved in the appeal, nor does it, indeed, decide any original question or review any questions previously decided. It simply causes the record to truly and correctly present the questions that it decided and to properly exhibit the facts or pleadings upon which its decisions were grounded."