MISSOURI, K. T. RY. CO. v. ROGERS, 54 Tex. Civ. App. 165 (1909)

116 S.W. 624

MISSOURI, KANSAS TEXAS RAILWAY COMPANY OF TEXAS ET AL. v. W. J. ROGERS.

Court of Civil Appeals of Texas.
Decided February 24, 1909.

Statement of Facts — County Court.

The Act of May 25, 1907, Laws, 30th Leg., p. 509, requiring original statements of facts to be sent up on appeal, and not copied in the transcript, applies to appeals from the county as well as the district courts.

Appeal from the County Court of Llano County. Tried below before Hon. A. H. Willbern.

The judgment, on final submission of the case was, on April 7, 1909, reversed and rendered for appellant as to the Houston T. C. R. Co., and was reversed as to the Missouri, K. T. Ry. Companies, unless the appellee should remit all damages above $208.39. These rulings were entirely on questions of fact and are not reported.

S. R. Fisher, J. H. Tallichet and S.W. Fisher (Baker, Botts, Parker Garwood, of counsel), for appellant Houston T. C. R. Co.

Fiset McClendon, for appellants Missouri, K. T. Ry. Co. and Missouri, K. T. Ry. Co. of Texas.

McLean Spears, for appellee.

FISHER, CHIEF JUSTICE. —

Appellant has filed in this case, which is now pending in this court, an application for writ of certiorari to the clerk of the County Court of Llano County, Texas, to require him to send up as a part of the record in this cause, and incorporate in the transcript therein, a statement of the facts prepared and filed in the trial court. It is stated in the application that this case is properly on appeal to this court, which we find to be the fact, and that the appellant has filed the record and the original statement of facts in this court within the time required by the statute, and that the case was tried and disposed of in the County Court of Llano County; that the clerk in making up the transcript did not copy and incorporate therein the statement of facts, but there was sent up in lieu thereof the original statement of facts, which accompanied the record, and which, as said before, was filed in this court within the time required by statute.

This application for certiorari is based upon the decision made by the Court of Civil Appeals of the Sixth Supreme Judicial District in St. Louis Southwestern Railway Co. of Texas v. Nelson, 108 S.W. Rep., 182, wherein it is held that so much of the Act of the Legislature of 1907, p. 509, as requires the original statement of facts to be sent up on appeal to the Court of Civil Appeals, has no application to appeals taken from cases tried and determined in the County Court, and that in such appeals the statement of facts shall be copied into the transcript and record as made up by the clerk of the County Court, We can not agree with and approve the rule announced in St.

Page 166

Louis Southwestern Railway Co. of Texas v. Nelson, for, in our opinion, there is no exception to the statute, and that its purpose and object was to require the original statement of facts to be sent up in all cases, whether disposed of in the District or County Court, except in those classes of cases where there is some special statute upon the subject, which is not the case here.

With this view of the question, we are of the opinion that the appellant has properly perfected its appeal, and that the original statement of facts, being filed within time, should be considered. Therefore we overrule the application for certiorari.

Motion overruled.