On Motion to Strike Statement of Facts.

HENDRICKS, J.

The defendants in error move to strike the statement of facts from the record, upon the ground, among others:

"Because the same was not filed in the court below within the time provided by law, * * * and it appears from the certificate of approval that the county judge approving the same did so without authority of law."

The cause was tried at the March term of the county court, which court adjourned on the 21st day of March, 1914. There appears no order in the record extending the time for filing the statement of facts. The record shows that the same was filed July 17, 1914. It is to be noted, however, that under the provisions of the Acts of the 32d Legislature, art. 2073 (section 7), amendment of 1911, with reference to the time for preparing and filing statements of facts, it is now provided:

"That any statement of facts filed before the time for filing the transcript in the appellate court expires shall be considered as having been filed within time allowed by law for filing same."

Chief Justice Fly said, in the case of Heirs of Criswell v. Robbins, 152 S.W. 211:

"What purpose the Legislature had in view in passing such a clause, which practically sets aside all the other provisions, * * * is utterly inconceivable. But there it is, and under its provisions the statement of facts, although filed beyond the time legally given by the court, must be held to have been filed in time."

This provision also applies to the matter of fling the statement of facts, and the time thereof, when the cause is taken to the higher court by petition in error. Louisiana Rio Grande Canal Co. v. Quinn, 160 S.W. 151.

A part of the certificate of the county judge appended to the statement of facts (after the statement by the court of disagreement by the attorneys) reads as follows:

"* * * The county judge of Hale county has duly examined said statement of facts in connection with the stenographer's transcript on file, and finds the same is a true and correct statement of the facts, and all the facts proven in said cause, as shown by the stenographer's transcript, and same is hereby adopted, approved, and filed as the court's statement of facts."

The motion in this case to strike the statement was filed more than thirty days after the filing of the transcript in this court Rule 8 (142 S.W. xi), promulgated by the Supreme Court, with reference to motions affecting informalities in bringing the cause to the appellate court, reads as follows:

"8. All motions relating to informalities in the manner of bringing a case into court shall be filed and entered by the clerk on the motion docket within thirty days after the filing of the transcript in the Court of Civil Appeals, otherwise the objection shall be considered as waived, if it can be waived by the party."

We also quote rule 9 (142 S.W. xi), partially explanatory of the meaning of rule 8:

"9. Motions to dismiss for want of jurisdiction to try the case and for such defects as defeat the jurisdiction in the particular case and can not be waived shall also be made, filed and docketed at said time: Provided, however, if made afterwards they may be entertained by the court upon such terms as the court may deem just and proper."

The rules of procedure governing matters of this character have been in existence for several decades. The nearest case we can find analogous to the particular question involved here is Railway Co. v. West Bros., 152 S.W. 181, which holds in effect that the failure of a clerk's certificate to state that the transcript was a true copy of all the proceedings is a mere informality, so that a motion to dismiss on that ground should have been made within 30 days after the filing of the transcript, under said rule 8.

The position of appellee is that the court's certificate exhibits a true and correct statement of facts, as shown only by the stenographer's transcript, which, as to this cause is an unofficial document, and is not in accordance with a proper authentication, which has considerable force. However, we are convinced that the authentication, if imperfect, is an informality relating to the manner of bringing the cause into this court, and not jurisdictional, and hence is waived on account of the delay in filing the motion.

Article 2073, supra, also provides:

"That when the parties fail to agree upon a statement of facts, the judge shall not be required to prepare such statement * * * unless the party appealing, by himself or attorney within the time allowed for filing, shall present to the judge a statement of facts and shall certify thereon, over his signature, that to the best of his knowledge and belief it is a full and fair statement of all the facts proven on the trial."

The attorney presenting the statement of facts to the judge for approval, in this instance, did not append the certificate indicated; but we are of the opinion that the same is directory, in the sense that the certificate is for the benefit of the trial judge he could refuse to approve any statement after disagreement between counsel presented by the attorney for the unsuccessful litigant, if the certificate was not appended, which, however, is a matter for the judge to decide; and if he did approve, without such certificate, the lack of same would be unavailing to the opposite party.

The motion is overruled.

Supplemental Opinion.

Article 2073, in omitting the amendment of 1911, hereinafter quoted by us, with reference to the time of filing statements of facts, as said article appears in the compilation of the Revised Civil Statutes presented for adoption to the Thirty-Second Legislature of 1911, may be misleading to the profession. At the regular session of the Thirty-Second Legislature of 1911, this article (embodied in the Official Court Stenographer's Act, and enumerated therein as section 7) was amended as follows:

"Provided that any statement of facts filed before the time for filing the transcript in the appellate court expires, shall be considered as having been filed within time allowed by law for filing same"

— the same amendment construed by us in the original opinion upon motion to strike the statement of facts, and with reference to the meaning of which, as to the time of filing, the interpretation of other courts was followed. However, article 2073, embodied in the Revised Civil Statutes of 1911, considered by the Thirty-Second Legislature, did not have the amendment appended as quoted by us (though passed by the same Legislature), and in view of the fact that section 17 of the general provisions contained in the final title of said Revised Statutes particularly prescribes that the laws enacted by the Thirty-Second Legislature are not repealed by the adoption of said statutes, but continued in force, it necessarily follows that said amendment, construed by this court and passed by the Thirty-Second Legislature, continues to be the law on the subject indicated, and is properly represented in Vernon's Sayles' Revised Civil Statutes, recently compiled. We make this explanation in view of the argument on the submission of the cause that as to article 2073 as it appears in said Revised Statutes, on account of not containing said amendment as quoted, the latter was not the law applicable to the time of the filing of statements of facts, when in reality the same was continued in force by the same Legislature.

It is also urged in the argument that the amendment of 1911, as quoted by us, has reference to the time of the filing of statements of facts in the appellate court, and not in the trial court, and that by such a construction the previous provisions in said article 2073, with reference to the granting of extensions of time for filing statements of facts, would thereby mean something, and the act would become harmonious. The act, with the amendment of 1911, is incongruous; but we think appellee's construction would make it more so, as the logical result of such a contention would be that in some appeals the statement of facts would not have to accompany the transcript, if the latter were filed in the appellate court before the full time expired for filing transcripts, which accompaniment is specifically required by the other provisions of the law.

There was no motion for rehearing as to this matter in the appellate court, and we are merely making these observations in view of the appearance of the article as it appears in the Revised Civil Statutes of 1911, which, without further investigation, might be misleading as to the matter of appeals.