
    No. XIV.
    A. C. & A. K. Allen et al. v. Thos. W. Ward. A. C. & A. K. Allen et al. v. Thos. W. Ward.
    (See .)
    
      Appeal from, Harris County.
    
    
      
      .—Allen v. Ward, p. 371.
      Judgment should be entered on verdict before appeal is taken. Warren v. Shuman, 5 T., 441, 450. An appeal lies only from a final judgment. East and West Texas Lumber Co. v. Williams, 71 T., 444; Davis v. Martin, 15 T. C. A., 62. If there is no final judgment the appeal should be dismissed. Martin v. Crow, 28 T., 613; Simpson v. Bennett, 42 T., 241; I. & G. N. Ry. Co. v. Smith County, 58 T., 74; Whitaker v. Gee, 61 T., 217; Mignon v. Brinson, 74 T., 18. The record can not be amended after dismissal so as to show final judgment. M. P. Ry. Co. v. Scott, 78 T., 360. Judgment is not final until motion for new trial Is overruled. M. P. Ry. Co. v. Houston Flouring Mill Co., 2 App. C., sec. 573.
    
   HEMPHILL, Justice.

The appeals in the cases above stated were brought up from the District Court for the County of Harrisburg, and depend upon the same state of facts. The appellee in this court (the plaintiff in the court below) recovered judgment against the appellants (who are defendants in the action) in both cases in the county court in January, 1838, from which judgments the defendants appealed to the district court. No statement of facts was sent up with the record; and at the December term of the district court in the same year, a mandamus was issued to the county court to send up the same, which being sent up in the vacation of the county court, and the district judge being of opinion that the same could only be given in at term time, the cause was continued. At the next session of the county court, the said statement was certified to in open court by the chief justice thereof, he being the only member of the court that had tried the cause still remaining in office. At the June term of the district court, the judgments in both cases in the county court were affirmed, from which the defendants appealed to this court.

It was contended that the judgments of the district court should be reversed on various grounds, and among others that the statement of facts sent up from the county court was not given at the term of the court when the trial was had; that it was given during a vacation of the said court; that it was not certified to by the whole of the members composing the same at the time of the trial. The provision of our statute (volume 2, page 94) requiring a statement of facts to be sent up to the Court of Appeals, is expressed in the following terms, viz: “That in all cases of appeals to the Supreme Court, the trial shall be on the facts as agreed on, or certified by the judge below,” etc. The time at which this agreement between the parties as to the facts, or the certificate given by the judge, is not pointed out. It is not required—as it is by statutory regulations in many countries—that the statement of the facts should become a part of the record, properly so called, and be certified to by the clerk as constituting a portion of the proceedings on the trial below. Whether it would have been wise in Congress to have required the facts to have been made out at the term of the court below, where the trial was had, to have constituted them a portion of the record—a transcript of which might be sent up by the clerk authenticated by his seal of office— it is not now for us to determine. Nor do we decide on the wisdom of the rule which suffers the parties or the judge to furnish a statement of facts at any time before the docketing of the case in the Court of Appeals. It is our duty simply to enforce the statute in the sense in which we understand it; and where the Legislature has fixed no limitation to the time in which the statement of facts may be made out, it is not our duty to prescribe one. Vide McMicken v. Reilly et al., 7 Martin (N. S.), 393, and 8 Martin (N. S.), 303.

The length of time, then, which elapsed between the trial and the sending up of the statement of facts constitutes no valid objection to their admission.

We are also of opinion that there is nothing in our law requiring the facts to be made out by the judge during the term time of the inferior court—and that the judge of the district court erred in not admitting the statement sent up in compliance with the mandamus, certified by the chief justice and one of his associates, on the ground that the same was made out during a vacation of the county court. We are not to be understood as regarding with approbation the neglect to procure a statement of the facts for any considerable period after the trial of the cause. Where the testimony is oral and is preserved probably only in the frail memory of the parties or of the judge, it is highly proper that the facts should be made up at a very early day after the decision of the case.

We can not perceive that the condition of the appellants would be materially improved by rejecting the statement of facts sent up from below. The judgments in the coiinty court would then have been before the district court without any error in fact or in law, without any statement of facts, bill of exceptions, or other matter or thing which would have justified the reversal or disturbance of the judgment of the inferior court. The appeal must of course have been dismissed; for it is a well established principle, generally recognized in judicial proceedings, that verdicts of juries and judgments of courts will remain valid until some error therein, either in law or fact, is alleged and shown; and that the party who seeks to reverse or avoid the same must take upon himself the burden of showing good grounds for their reversal.

It may however be alleged that the appellant was not in fault; that the record shows a statement of facts to have been made out by him. This however was not agreed to by the appellee. In that event we believe it was his duty to have applied to the judge for a certificate of the facts, and to have shown to the appellate tribunal that such application was made. Without showing this fact, or that he had used due diligence to procure a statement from the judge, the party in default could not have reasonably expected the aid of the superior tribunal, by mandamus or other remedial writ, in bringing up the facts from the lower court; and much less could he have expected that his default should occasion any damage to the appellee or work the reversal of his judgment. In these cases the facts have been examined by the court and they are satisfied with the verdicts of the juries and the judgments thereon rendered. And as the conduct of the appellant seems to be vexatious, and the appeals taken for delay, and as the party appealing had no probable good and sufficient reason for taking such appeals, it is ordered and decreed that the judgment of the district court in both eases be affirmed, with 10 per cent dam- - ages on the amounts of said judgments, besides the interest and costs of suit on the same.  