Pratley v. Sherwin-Williams Co.

^* Writ of error granted. This appeal presents but one question, namely, Was plaintiff in error wrongfully deprived of his right to have approved and filed his statement of facts? On October 20, 1928, motion of defendant in error to strike out statement of facts filed in this cause on September 19, 1928, was sustained, on the ground, that it affirmatively appeared from the record that same had not been agreed to by the attorneys representing the respective parties and approved by the trial judge. The disposition of said motion by this court is not questioned; it being contended by plaintiff in error that he was by certain acts and conduct of the trial judge and counsel representing defendant in error wrongfully deprived of his statement of facts, in that, but for such acts and conduct, same would have been filed in due time, and that therefore the judgment in the trial court should be reversed.

Following are the facts material to the disposition of this question, established by the transcript of record and the affidavit of the attorney for plaintiff in error, included in said record, namely: This cause was tried in the Ninety-Fifth judicial district court of Texas for Dallas county (of which court Hon. Royal R. Watkins is the presiding judge) by Hon. Silas Hare, judge of the Fifteenth judicial district court of the state of Texas, presiding as judge of said Ninety-Fifth judicial district, under the Act of the Fortieth Legislature, c. 156, p. 228, organizing and dividing the state of Texas into nine judicial districts, providing for the transfer of district judges and the extension of terms of district courts. Judgment was rendered on February 6, 1928. Plaintiff in error filed his amended motion for a new trial February 10, 1928, on which date said motion was heard and overruled by Hon. P. O. Beard, judge of the Sixty-Seventh judicial district court of Texas, sitting for Hon. Royal R. Watkins, judge of the Ninety-Fifth judicial district court of Texas. At the same time, and forming a part of the order overruling said motion, Judge Beard "allowed plaintiff in error 80 days from the time allowed by law in which to prepare and file bills of exception and statement of facts."

At this time Judge Hare was in his own district, holding court, and Judge Beard had been assigned by the presiding judge of the administrative district, in which Dallas county is included, to try cases in Dallas county, and was so engaged at the time he overruled the amended motion of plaintiff in error for a new trial. The statement of facts involved was dated July 10, 1928, and was presented by the attorney for plaintiff in error to the attorneys for defendant in error on July 13, 1928. On July 14, 1928, attorneys for defendant in error returned to attorney for plaintiff in error said statement of facts, advising him that they refused to agree to same, on the ground that the period of 90 days following the overruling of the motion for a new trial had long since expired at the time said statement of facts was presented. On July 18, 1928, said statement of facts was received by Judge Silas Hare at Sherman, Tex., by express, together with a letter from the attorney for plaintiff in error, advising Judge Hare of the refusal of the attorneys for defendant in error to agree to same, and the grounds on which said refusal was made. Judge Hare refused to approve or sign the statement of facts so presented to him, or to prepare and sign and file with the clerk of the court a correct statement of facts proved on the trial, as required by law, in cases where the parties do not agree upon such statement of facts, or the judge does not approve or sign the statement presented to him. See article 2240, R.C.S. 1925. On August 3, 1928, Judge Hare entered an order in said cause, refusing to comply with the provisions of article 2240, supra, on the grounds, as stated by him, namely: "After this elapse of time and with an incomplete record before me, I am unable to make up a statement of facts that I am willing to certify is correct." Petition for writ of error and bond was filed June 29, 1928.

In order to dispose of the question before us, it is only necessary to discuss the authority of Judge Beard to make the order extending the time for filing the statement of facts 80 days, as entered by him. If Judge Beard, under the law, had the authority to make said order, then plaintiff in error was wrongfully deprived of his statement of facts, and the judgment of the court below will have to be reversed, and cause remanded. Subdivision 3 of article 2246, R.C.S. 1925, provides that: "Upon application of the party appealing, the judge before whom the cause is tried may, in term time or vacation for good cause shown, extend the time for filing such statements of fact and bills of exception; but the time shall not be extended in any case so as to delay the filing of the statement of facts together with the transcript of the record in the appellate court within ninety days after the date of filing the appeal or writ of error bond."

Under the terms of the above statute, trial judges are clothed with the authority to extend the time for the filing of statement of facts and bills of exception in the trial court, provided the extended time shall not delay the filing of the statement of facts, together with the transcript of record, in the appellate court within 90 days from the date of filing the appeal or writ of error bond. The order entered by Judge Beard extended the time for 80 days from the expiration of the 90 days allowed by law for filing statement of facts and bills of exception in the trial court, amounting in all to 170 days from the date of final judgment, viz., February 10, 1928, the date motion for new trial was overruled, as the term of that court may by law continue more than eight weeks. By this extension, plaintiff in error had until July 30, 1928, in which to file statement of facts and bills of exception, which extended 12 days beyond the date the statement of facts was presented to the trial judge with the disagreement of counsel in reference thereto. If, within the meaning of subsection 3, supra, Judge Beard was the judge before whom the case was tried — in other words, the trial judge of the cause — then the extension of time as made by him was valid and secured to plaintiff in error the right to have his statement of facts prepared, agreed to, and filed in the manner and form as provided for by articles 2240 and 2246, R.C.S. 1925. The purpose to be accomplished, the importance of the act, the attitude of the parties in reference to the subject-matter to be affected thereby, in our opinion make the language, "Upon application of the party appealing, the judge before whom the cause is tried may, in term time or vacation for good cause shown, extend the time for filing such statements of fact and bills of exception," mandatory and require that the application be made to and passed upon by "the judge before whom the cause is tried."

Was Judge Beard the judge before whom the cause was tried? As to what constitutes a trial, we quote the following from Words and Phrases, Second Series, vol. 4, p. 1003: "A ``trial' is the examination before a competent tribunal, according to the law of the land, of the facts or law put in issue in a cause for the purpose of determining such issue. When a court hears and determines any issue of fact or of law for the purpose of determining the rights of the parties, it may be considered a trial." State ex rel. Carleton v. District Court of Lewis and Clark County,33 Mont. 138, 82 P. 789, 791, 8 Ann.Cas. 752; Finn v. Spagnoli,67 Cal. 330, 7 P. 746; Tregambo v. Comanche Mill Mining Co.,57 Cal. 501; Lindley v. Kemp, 38 Ind. App. 355, 76 N.E. 798, 800; Bruce v. State, 87 Ind. 450, 453; Jenks v. State, 39 Ind. 1, 9; Hunter v. District Court of Polk County, 126 Iowa 357, 102 N.W. 156, 157.

Judge Beard did not take any part in the proceedings had in this cause, from the presentation of the pleadings to the rendition of judgment; his only act being the hearing of and entering order overruling the motion for a new trial.

We therefore hold that he was not the judge before whom the cause was tried, and that he did not have authority to extend the time for filing statement of facts therein, but that authority rested only with Judge Hare, who was the judge before whom said cause was tried. National Bank of Commerce v. Lone Star Milling Co. et al. (Tex.Civ.App.) 152 S.W. 663; Martin v. Martin (Tex.Civ.App.) 229 S.W. 695. If the order extending the time for filing the statement of facts and bills of exception made by Judge Beard had been made by Judge Hare, plaintiff in error would have been secure in his right, and no doubt would have received a correct statement of facts.

Plaintiff in error not having been wrongfully deprived of his statement of facts, the judgment of the court below is affirmed.

Affirmed.