Gist v. Holt

On Rehearing

COMBS, Justice.

In his motion for rehearing, duly verified, appellant insists that no judgment was. either pronounced, rendered or entered in this case until December 24, 1942. His appeal bond recites that the trial judge caused judgment to be entered December 24, 1942.

Were the record silent as to the date when the judgment was rendered no-doubt we could receive evidence in the form of affidavits or “other satisfactory evidence” to show the date. Rule 406. But this can be done only to supply jurisdictional facts “not apparent in the record.” Here the judgment which appellant brought up in the transcript recited the date of its rendition “On this 30th day of November, 1942.” This is controlling. The transcript cannot be impeached by affidavit or by recitals in the appeal bond prepared by appellant.

The new rules are quite liberal in allowing amendment of the record on appeal and this court is inclined to go just as •far as the rules and due regard for orderly procedure will permit to give a litigant his day in court. But we are bound by the record. Were this not so much confusion and bickering would result. We suggest that in any case where the record •as made in the trial court does not correctly reflect the proceedings the way to correct it is by appropriate and timely proceedings in the court where the trial occurred.

Motion for rehearing is overruled.

O’QUINN, J., concurs.