Moore v. Nordyke , 275 S.W. 849 ( 1925 )

This is an application for a mandamus, filed in this court by J. H. Moore, in which he alleges, in substance, that in January, 1925, he sued R. M. Galey, and on the 7th day of February, 1925, upon a trial before the respondent Judge Nordyke judgment was rendered in favor of the defendant, Galey; that four bills of exception taken by plaintiff during the trial were prepared and submitted to Judge Nordyke, who approved them without qualification, which bills were filed with the clerk and remained on file until about the 19th day of August, 1925; that on the 8th day of August, 1925, the relator applied to Herbert Stubbs, the county clerk of Lubbock county, Tex., for a transcript, and was informed by said clerk that he could not include the four bills of exception, because they had been taken from his possession by Judge Nordyke. The prayer is that Judge Nordyke be required to return the bills of exception to the county clerk, and that said clerk be required to at once prepare a transcript of the record, including said bills. Both respondents answered and appeared in person upon the hearing. The substance of Judge Nordyke's answer is that he was presented with three bills of exception in the case by one of the relators' attorneys, who represented that the bills had been submitted to opposing counsel and approved by them; that the stenographer's notes showed that the exceptions were duly taken upon the trial of the cause. He further avers that the representations were false; that the stenographer's record did not show that any such bills of exception were taken upon the trial, and that because the bills had been fraudulently obtained, he had taken them from the possession of the clerk.

The answer raises an issue of fact which this court cannot consider. The filing of the proper proceedings for a writ of error and the service of citation gave this court jurisdiction of the controversy. If the bills of exception do not speak the truth and were not really taken, and if the approval and filing of them is the result of fraud upon the part of relators' counsel, the trial court is the proper tribunal for determining such issues. Until they have been stricken upon motion duly filed in that court, they import verity, and this court must consider them as part of the record. If the defendant or the respondent sees fit to attack the bills of exception in that court, and it is made known by proper motion filed here that such proceeding had been instituted, consideration of the appeal will be postponed for a reasonable time in order to permit the record to be corrected.

If there was in fact a fourth bill of exception, the duty devolved upon the relator to proceed under the statute relating to the substitution of lost records to supply the missing bill in the trial court. It cannot be done here. There are numerous decisions which clearly define the rights of the parties and the proper procedure in such cases, some of them being East Line R. R. Ry. v. Culberson, 72 Tex. 375, 10 S.W. 706,3 L.R.A. 567, 13 Am. St. Rep. 805; St. Louis S.W. Ry. v. Campbell (Tex.Civ.App.) 34 S.W. 186; Neville v. Miller (Tex.Civ.App.) 171 S.W. 1109; Eustis v. Frey (Tex.Civ.App.) 204 S.W. 117.

The application is in all things granted, and the respondent Nordyke is directed to forthwith deliver the three bills of exception to the respondent Stubbs, and that said Stubbs is further directed to forthwith prepare a transcript of the record, including said bills of exception, and deliver the same to counsel for relator.