
    J. T. Cockrell v. J. R. Walkup.
    Decided December 22, 1906.
    Statement of Facts—Absence of File Mark.
    When a statement of facts bears no file mark of the clerk of the trial court it can not be considered on appeal. A statement of facts prepared by the stenographer and approved by the judge must show that it was also filed within the prescribed time.
    Appeal from the District Court of Baylor County.
    Tried below before Hon. J. M. Morgan.
    
      Holm,an & DicTcson, for appellant.
    
      Glasgow & Keenan for appellee.
   STEPHEUS, Associate Justice.

The statement of facts on which this case is submitted, which was made up by the stenographer and certified to by the district judge, bears no file mark of the district clerk, and we are therefore unable to determine whether it was filed within the time required by law, or whether it was ever filed. It has heretofore been decided by this court that the time prescribed for filing a statement of facts was not changed by the Stenographers Act of 1905, and we construe that Act to require that the statement of facts made out by the stenographer and approved by the district judge to be sent up with the transcript should first be filed and within the prescribed time in the District Court.

The questions raised by the assignments in this case can not avail appellant in the absence of a statement of facts, and the judgment is therefore affirmed.

Affirmed.

on rehearing.

Appellant has brought up the stenographer’s statement of the evidence which was filed in the District Court, the file mark indorsed thereon showing that it had been filed within the prescribed time, and we have examined the assignments of error, or such of them as are not too general to be considered, in the light of this statement of facts, and finding that there is no merit in any of them, we have concluded to refuse the relief sought by this motion.

Motion overruled.

Writ of error refused.  