Opinion
Decided April 7, 1906.
1. — Statement of Facts Stricken Out.
Where it appears from the record that the statement of facts and bills of exception were not filed within the time fixed by law a motion to strike out will be sustained.
2. — Absence of Statement of Facts — Charge of the Court.
Where the charge of the court submitted a ground of recovery not alleged in the petition, and also one that was alleged which was a sufficient basis for the recovery had, the case is not an exception to the general rule forbidding consideration of error assigned to the charge of the court in the absence of a statement of facts.
Appeal from the District Court of Midland County. Tried below before Hon. James L. Shepherd.
Whitaker Gibbs, for appellant.
Camp Caldwell, for appellee.
The motion of appellee to strike out the statement of facts and the bills of exception because the same were not filed within the time fixed by law, as shown by the findings and judgment of the court correcting the record since the appeal was perfected, must be sustained.
The questions raised by the numerous assignments of error can not avail appellant without a statement of facts or bills of exception. This is obviously so with reference to all assignments except those complaining of the charge for submitting a ground of recovery not alleged in the petition, which appellee, in attempting to answer, though unsuccessfully, seems to concede may be considered. But inasmuch as the charge also submitted a ground of recovery that was alleged, and inasmuch as the verdict, in the absence of a statement of facts, conclusively establishes the truth of this ground, which was itself a sufficient basis for the recovery had, the case does not come within the exception to the general rule of practice forbidding the consideration of error assigned to the charge of the court in the absence of a statement of facts. To bring it within the exception, it would have to appear from the record that the error in the charge affected the verdict, as in the case of Anding v. Perkins, 29 Tex. 348. For statement and illustrations of the rule and exception, see opinion in Texas Pac. Ry. v. McAllister, 59 Tex. 549, and cases there collated; also White v. Parks, 67 Tex. 605; Hill v. Gulf, C. S. F. Ry., 80 Tex. 431; Atchison, T. S. F. Ry. v. Lochlin, 87 Tex. 467. The judgment is therefore affirmed.
Affirmed.
Writ of error refused.