
    Withee v. May and another.
    It is not competent for the judge to make up a statement of facts after the adjournment of the, term.
    Where the parties fail to agree on a statement of the facts the judge should during the term make out a statement from the statements furnished him by the parties ana his own knowledge; if only one party furnish a statement, then from such statement and his own knowledge, and sign and seal the same, and cause it to be filed in the records of the cause as a part thereof; otherwise it will not be considered. (Note 34.)
    Appeal from Titus. The record in this ease showed what purported to he a statement of facts made out and signed by the presiding judge after the adjournment of the term at which the suit had been tried, and after the judge had commenced a term in another county. The circumstances were disclosed ■ by the judge as follows: “The counsel failing to agree upon a statement of; facts, and S. F. Moseley, esq., plaintiff’s attorney, being too sick to make out a statement, the foregoing statement is made out from a statement furnished, by J. C. Everett, esq., defendant’s attorney. Monday of Cass Court, 24th Sept., ISJ1. L. D. Evans, Judge.” :
    
      Note 31. — Where there has been no notice of aj-noal a statement signed by the counsel of one party only, and approved and signed by the ledge, will not be received as part of the record. {Lacy v. Ashe, 23 T„ 394.)
    
      J. C. Everett, for appellant.
    
      S. F. Moseley and O. G. Hartley, for appellee.
   Lipscomb, J.

By reference to the statute, Hartley’s Dig-., art. 788, it will be seen that the statement of the facts is defective and wanting in the most essential requisites of the law. It was not signed by the judge during' the term. It ivas not by the statement furnished by both parties and from his own knowledge, but from the statement furnished by the defendant’s counsel, and after the adjournment of the term.

The judge did not seal it and order it to be filed in the records of the court as part thereof.

If the counsel coukl not agree, and one of them could not or would not furnish the judge a statement, tind the judge had during the term of the court made out a statement from the statement of one and his own knowledge of the facts, and complied with the other requisites of the statute, it would have been sustained as a substantial compliance with the requisites of tiie law. As presented, however, we must reject it entirely as no part of the record. (See 1 Tex. R., 77; Id., 192.)

The facts not being before us, and there being no bill of exceptions allowed bringing any of -the supposed errors of the court before us for consideration, excepting the one so often overruled, the irregularity of the jury, the judgment is affirmed.

Judgment affirmed.  