
    SANDERS NURSERY CO. v. J. C. ENGELMAN, Inc.
    No. 9176.
    Court of Civil Appeals of Texas. San Antonio.
    March 22, 1933.
    Rehearing Denied May 10, 1933.
    Greenwood & Lewis, of Harlingen, for plaintiff in error.
    Sawnie Smith, of San Antonio, and Kennedy Smith, of Edinburg, for defendant in error.
   MURRAY, Justice.

This is a motion to strike out statement of facts. The statement of facts in this case was prepared by the official court reporter, filed with the clerk of the court below, approved by the trial judge, and forwarded to the clerk of this court.

Attorneys for the defendant in error were not given notice of the filing of the statement of facts with the clerk below, bad no opportunity to make their objections thereto, and did not in 'anyway agree to said statement of facts.

Article 2238, R. C. S. 1925, as amended by Acts 1931, 42d Leg., 1st Called Sess., p. 75, c. 34, § 2 (Yernon’s Ann. Civ. St. art. 2238), reads as follows: “When any party to any suit reported by any such reporter shall desire a transcript of the reporter’s notes of the evidence in said suit, said party may apply for the same and such stenographer shall thereupon file an original and duplicate copy thereof in question and answer form among the papers in said cause, and it shall be made the duty of the court, if the transcript be found to be correct, to approve the same; provided, however, before approving same, notice of the filing shall be given to the interested parties, who may make objections thereto, and any objections, if found to be material and well-founded, shall be allowed. If said transcript is thus approved and signed by the judge, the same shall be filed among the papers of said cause and become a record therein, but not to be recorded.”

It is clear that this plain provision of the statute, which requires the giving of notice, was not complied with. The motion will be granted and said statement of faetsi stricken from the record. Corbett et al. v. Raymondville Independent School District et al. (Tex. Civ. App.) 52 S.W.(2d) 1116.  