E. F. Rowson Co. v. McKinney , 1913 Tex. App. LEXIS 283 ( 1913 )

Appellants had the statement of facts copied into the transcript, and seek to file a separate statement of facts. It is claimed that the statement of facts was so copied because rule 86 (142 S.W. xxiii) for the district and county courts requires all bills of exceptions and statement of facts shall be literally transcribed, and rule 92 (142 S.W. xxiii) requires an index in the transcript of the statement of facts.

The two rules are old ones, and their reissuance by the Supreme Court in 1912 gave them no more force than they had before that time, and the Supreme Court has often recognized the law in regard to sending up separate statements of facts, and has also held that a statement of facts copied into the transcript should be considered when there is no objection by the appellee. Railway v. Stoker, 102 Tex. 60, 113 S.W. 3; Railway v. Waggoner, 102 Tex. 260, 115 S.W. 1172.

The Laws of 1911, p. 264, § 6, general laws of that year, provide that "it shall not be necessary to copy said statement of facts in the transcript of the clerk, on appeal, but the same shall, when agreed to by the parties and approved by the judge, or in the event of a failure of the parties to agree and a statement of facts is prepared and certified by the judge trying the case, be filed in duplicate with the clerk of the court, and the original thereof shall be sent up as a part of the record in the cause on appeal." That law is superior to and cannot be repealed by a rule of the Supreme Court. The Constitution of Texas, art. 5, §25, gives the Supreme Court the "power to make and establish rules of procedure, not inconsistent with the laws of the state, for the government of said court and the other courts of this state, to expedite the dispatch of business therein." The Supreme Court has not, we believe, ever contemplated transcending the powers granted by the Constitution in the article and section cited.

Section 12, p. 268, Acts of 1911, makes the rules as to the preparation and filing of statements of fact in the district court apply to the same in the county courts, but only when a stenographer has been appointed upon the application of a party to a suit, and the inference may be fairly drawn that the act was not intended to apply to other cases in county courts. In the Acts of 1909, p. 378, § 13, it was provided that the rules as to statements of fact should be the same in county courts as in district courts in all cases, but the law of 1909, as well as all other laws in conflict with the provisions of the act of 1911, were specially repealed by that act. We therefore hold that it is not necessary to file a statement of facts, separate from the clerk's transcript of the record, in any case appealed from a county court, except in a case in which the county judge, upon application of a party to the suit, shall appoint a stenographer to report the oral testimony given in such case.

Appellants have complied with the law in having the statement of facts in this case, which is not included in the exception, copied in the clerk's transcript; but as the request is made that the original statement of facts be filed, and appellee agrees to it, it is ordered that statement of facts be filed.