J. M. Taliafero v. Adison Carter et al., 74 Tex. 637

Stayton, Chief Justice. Appellant brought this action of trespass to try title against Adison Carter and the unknown heirs of John Binion. Carter answered, and the unknown heirs of Binion were cited by publication and represented by an attorney appointed by the court, they not appearing. A judgment was rendered in favor of appellant for one sixth of the land sued for, and he now prosecutes a writ of error and seeks a reversal on the sole ground that there was no statement of the evidence, approved, signed by the judge, and filed with the papers of the cause as a part of the record, as is required by

article 1345, Revised Statutes. That provision of the statute was enacted for the protection of defendants cited by publication, and while it has been held that the failure to file such a statement would be ground for reversal when asked by one injured thereby, we are not prepared to reverse a judgment on that ground alone when we are asked to do so by one whose duty it was to see that the statement was filed. The judgment of the court below will be affirmed, but without prejudice to the rights of the unknown heirs of John Binion hereafter to question its validity as to them in any manner permitted by law. It is so ordered. Affirmed. Delivered October 29, 1889.