J. J. Greenwade v. Jesse Walling et al., 30 Tex. 377

Morrill, C. J. This suit is for a league of land on the Brazos, in McLennan county. During the progress of the cause there were a number of changes made, both as to parties and the object of the suit. The controversy finally was as to the south half of the league of land, and it was decided that plaintiff in error was entitled to one-fourth of the same and defendants in error to the other three-fourths. The first error assigned is that, 1. The court erred in excluding the evidence of James Barton.

We have looked through the record of upwards of one hundred pages, and have found on page 72 of the record a motion for continuance, made during the progress of the cause, because the judge excluded the deposition of James Barton. What the deposition was, or for what reason it was excluded, does not appear; and, of course, we cannot say whether the court erred or not. The presumption legally exists that the judge decided correctly. 2. The second exception is for refusing a continuance because the testimony of said Barton was excluded.

As already stated, as the testimony of said Barton is not known to us, we cannot decide whether it was material or not. To the third and fourth exceptions we answer, that there is no statement of facts in all the record, and the same cannot be further inquired into. We cannot but express our surprise that the distinguished attorneys who appear to have had the management of the case should have shown so much neglect of their duties as is shown in the record.

There is hardly a volume of the whole twenty-seven of the Texas reports in which it is not stated substantially, what is found as the opinion of the court in the case of Portis v. Cochrane, 1 Tex., 77, viz, “there is no statement of facts in the record, and all presumptions are in favor of the correctness of the verdict.” In the case of Stevens v.

Bowerman, 27 Tex., 18, there was a purported statement of facts, upon which Chief Justice Wheeler, in delivering the opinion of the court, remarked: “What purports to be a statement of facts contains a mere reference to certain papers and orders. * * * It is the province of the statement of facts to bring before the court clearly and unmistakably the evidence on the trial. * * * Because there is no question presented by the record, in a manner to require us to revise the rulings of the court, the judgment is affirmed.” We have thus quoted from the first and last published volumes of the reports what may be also found substantially in the other twenty-five volumes.

Because, therefore, the record does not contain such a statement of facts as will enable us to make any revision of the several rulings, orders, and judgments, the judgment is Affirmed.