
    The Heirs of Prewitt v. Wm. C. Woods
    Appeal from Harris County.
    The time at which the transcript is made out is not material, provided it was filed in due time with the clerk of the supreme court.
    A statement of facts made out by a late judge, after resigning his office, cannot be received. [13 Tex. 349; 21 id. 22.]
    A preliminary motion was made in this case to dismiss the appeal on the ground that it was not actually taken until more than one year after the rendition of judgment.
    
      By Chief Justice Hemphill: The facts upon which this motion must be decided are, that the judgment was rendered at the fall term of the district court in 1844. Notice of appeal was given in open court, and some weeks subsequent thereto a bond was filed. The transcript of the record was made on the 5th of December, 1845, and was filed in the late supreme court on the 28th of the same month.
    The appeal was returnable to the term of the supreme court which commenced in Decémber, 1845. The time at which the transcript was made out is not material, provided the record was filed in due time with the clerk of the supreme court. This, under the law organizing the court, should have been done on or before the first day of the term, or good cause shown to the satisfaction of the court, why it was not done. The objection, however, is not placed on this ground and we may presume, there being no evidence to the contrary, that the court permitted the cause to be filed at a later day of the term, on some good cause being shown which prevented the filing on the first day.
    The motion to dismiss is overruled.
    Trespass to try title. "Vei’dict and judgment for the defendant below. The record contains a statement of facts made out and signed, (W. B. Ochiltree, late judge of the 5th district.” It appears from the certificate, that the parties after the trial agreed that the judge who presided might make out a statement of the facts of the case from his notes of the evidence taken at the trial, but the statement was not made out and certified until after the judge had resigned his office.
    
      Kauffman and Duffield, for appellants.
    
      Rush and Henderson, for appellee.
    No briefs.
   Lipscomb, J.

In this case there is no bill of exceptions, and no statement of facts that can be recognized. There is what purports to be a statement of facts signed by W. B. Ochiltree as late judge, after he had resigned his office. It cannot be received; and as there is no error apparent on the record, the judgment is affirmed.  