Opinion
Decided May 5, 1909.
Statement of Facts.
A statement of facts, chiefly in narrative form as required, but of which some thirty pages consist of questions and answers of witnesses on material matters, will be struck out on motion, and assignments of error for the determination of which a statement of facts is necessary will not then be considered.
Error from the District Court of McLennan County. Tried below before Hon. Marshall Surratt.
W. S. Banks, for plaintiffs in error.
Snodgrass Dibrell, for defendant in error.
At a former day of this term of court, upon motion of appellee, we struck from the record the statement of facts. The appellants filed a motion for rehearing complaining of our action, which was, after due consideration, overruled. The motion to strike out was based upon the fact that the statement of facts was not altogether in narrative form, but did, in material parts, state the evidence by questions propounded to the witnesses and their answers thereto.
All of the appellants' assignments of errors, as we construe them, relate to the facts, and could not be considered and disposed of without reference to the statement of facts. Therefore, the only question that we feel called upon to consider is whether our action in striking from the record the statement of facts was proper.
The statute under which the statement of facts in this case was prepared was considered and construed by this court in Opperman v. Petri, 107 S.W. 1142, where we held that the statute intended and required the statement of facts to be prepared in narrative form, and not so as to embrace the questions propounded to the witnesses and the answers given thereto. Much of the statement of facts in this case is in narrative form, but there are a number of pages that contain the questions propounded to the witnesses and the answers given in response, and all this testimony is in our opinion material, and could not be excluded from the record without doing an injustice to the appellee. There is testimony of this character contained in about thirty pages of the statement of facts, and it is apparent from reading the evidence so stated that it is material, and the violation of the rule in stating it in that form should not be excused on the ground that the testimony was immaterial or that the breach of the rule was slight and unimportant.
Therefore, the assignments of error being of the nature stated, and holding as we do that the statement of facts was properly stricken out, there is nothing left for us to consider. Such being the case, the judgment is affirmed.
Affirmed.
Writ of error refused.