
    Houston v. Jones.
    A hill of exceptions authenticated by bystanders must first show that it had been presented to thejudge on the trial, and that he had refused to sign it and certified the cause of such refusal; then tho certificate of the bystanders must show on its face that the persons signing were bystanders; that they were present when the facts in dispute between themselves and the judge occurred in court; and must point directly to the matter in issue; the certificate should also he given at the time of the occurrence of the fact; it should then appear whether the judge permitted the bill to be filed; if not, affidavits as provided by tho statute» should be produced.
    Exceptions to opinions or rulings of the court should be reduced to writing and presented at the time the. opinion is given or the ruling made. (Note 30.)
    All motions in the District Court must be in writing, filed, &c.
    "Where a judge is of opinion that a bill of exceptions authenticated by bystanders is not true, his duly is to forbid the filing of it, leaving the fact to be ascertained by affidavits, as provided by tho statute.
    "Where a defendant was not served with process in a Justice’s Court, but appeared on the day of tho trial, after judgment, and took an appeal: Held, That he ought to have moved for a new trial.
    Error from Gonzales. Suit, before a justice, by Jones against Houston. Record of justice did not show that Houston was served. Judgment in favor of Jones; Houston not appearing. Same day Houston appealed. In District Court verdict and judgment for Jones. The trial was on the 23d of April. On the 24lh of April there appears to have been filed what was designed to be a bill of exceptions, authenticated by bystanders. It sets out that the defendant liad moved tlie court to dismiss tlie cause, on the ground that the process of the justice of the peace had not been served, and that the defendant was not thereby allowed an opportunity to file set-oil's, not knowing of the trial; that tlie motion was overruled and the trial proceeded ; and that after tin* plain tiff had read his note to the jury, defendant’s counsel offered to lile and prove an account of set-offs and payment, but it was objected to, on the ground that it had not been filed before the justice of the peace, and the court sustained the objection. Then followed, ‘‘This bill of exceptions was presented to tlie lion. F. Jones, in my preseueo, by A. Neil, attorney, and be refused to-sign the same as made out above. F. Cbeuault, April 24th, 1849.” Under which was the following: ‘‘We, the undersigned, certify this bill of exceptions as true, April 24th, 1849. Rolla 31. Davis, 31. Ileskew, sheriff, O. E. DeWitt.” There was no motion to dismiss, in the record, nor was' any account filed by defendant.
    
      Neill, for plaintiff in error.
    The plaintiff in error was not served with process to appear before the justice; had therefore no opportunity to file his set-offs. The District Court, instead of correcting the wrong brought to tlie notice of the court, go on to trial and thereby preclude tlie plaintiff' in error from filing aud proving his account of set-off, because they were not filed in the court below. This is the whole matter presented in the record; and there is sneli obvious error therein that we conceive it as absurd to dwell upon it. We refer t(5 the following sec-lions : Sec. 5G, p. 37G, acts of 1S4G, as t.o file introduction of claims; secs. 53, 54, p. 177, sec. 31, p, 17Í, as to appeals; sec. 101, ]). 391, Id., as to hills of exceptions. See also 'Worthington v. 3Idntyre, just decided.
    
      Phillips, for defendant in error.
    The record shows that no motion to dismiss was made. Tlie statement contained in the record (pp, 5 to 7) is inadmissible. It is neither a statement of facts nor bill of exceptions. (Acts of 1846, sec. 135, pp. 398, 399; Id., see. 101, p. 391.) _It was not signed until the day after tlie trial. (Acts of 1S4G, sec. 53, p. 37G; 1 Tex. R., p. 854, Rule 10, D. C.; Id,, p. 851, Rule 18, D. C.) There was an appearance. This estops the party from disputing notice. (3 Phil. Ev., 907; 12 Pet. R., 300.)
   Lipscomb, J.

Refore considering any matter growing out of what is presented in this paper, we must first determine if it comes up so authenticated as to he received as a part of tlie record, having all the effect that it would be entitled to had it been signed and sealed as a bill of exceptions by the presiding judge. The act of the Legislature regulating bills of exceptions will he found in section 101 of the act to regulate proceedings in the District Courts passed in 1846, (p. 391,) and is in tlie following words':

‘‘ Whenever in tlie progress of a cause or tlie trial thereof either party is dissatisfied with a decision or opinion of the court, lie may except thereto; and oil reducing his exceptions to writing and presenting them to the judge for allowance, tlie judge shall allow and sign liis name to the same, if they lie true; and if he refuses to do so, lie shall certify in writing tlie cause of such refusal. If any judge shall refuse to sign a bill of exceptions, such bill may be signed by three bystanders who are reputable inhabitants of the State, and tlie court shall permit such bill to be filed. And every bill of exceptions signed by tlie judge or bystanders, and filed in tlie court, shall form a part of tlie record in which the same may be filed.”

To give a fair construction to the section just cited, it appears to me that, to give the paper presented as a bill of exceptions tlie effect of a record, it must first show that it had been presented to tlie judge on trial and liis refusal to sign it,'and Ills certificate of the cause of such refusal. It is only necessary to remark that this is not shown. Without this there is no issue of fact presented between tlie judge and bystanders. This ought to he done, because if the. judge believes tile bill not (rue, he is bound to refuse to sign it. Second, tlie bystanders must certify the bill on snob refusal. How are they to certify? As in the paper presented? The affirmative could not. for a moment be seriously insisted ou. The certificate must show on its face that these persons were bystanders; that they were present when the disputed fact between the judge and themselves occurred in court, and their certificate should point clearly to the matter in issue. The certificate is further objectionable in this: that they say that they “ certify the bill of exceptions as true.''' Now, the paper certified by them sets out matter which, if true, should appear on tlie record before any opinion of the court was called for, and was not of a character to be embraced in a bill of exceptions, it states that a motion had been made lo dismiss tlie cause for reasons assigned. If such motion had been made, it ought to have appeared on the motion docket, and not orally. Tlie fifty-third section of the act before referred to is in the following words: “There shall be amotion docket., to be kept by the clerk, in which he shall enter all motions filed in court.; tlie, number of the suit in which they are made, if it relates to a suit pending; the names of parties and their attorneys, with a brief statement of (he nature of (ho. motion.” Hit was true that such a motion had been made, it might have been shown independently of the bill of exceptions, and the disposition that was made of such motion would also appear. Again, tlie certificate should have been given at the time of the occurrence of the fact certified to, when the, impression was formed from such fact, without being liable to be molded by the. out-of-door opinions as'to what those facts were. The paper siiows that it was oil tlie 24th that it was presented and certified, and the record allows that the trial was on the 23d of April. It is very easy for persons hearing evidence or a statement of a fact in the court-house to have their opinions and recollections much modified afterwards by conversation with others who profess to have heard the same; and one is sometimes persuaded that lie heard the mutter incorrectly, or that it had escaped his memory, in relation to some incident; and under such circumstances tlie account he would give of the transact,ion would be very materially different from wliat his statement would have been before ho. left the court-room and conversed with others. Hence the, necessity of his certificate at the time, when free from such influences, and whilst it was fresh in his memory. It is for the same reason that exceptions to the opinion of the judge should be reduced to writing at the time the opinion is given or the ruling made.

Again, the sectiou of tlie act we have cited seems lo require that the filing of tlie papers so certified should ho with the knowledge and permission of the judge, and not a mere office act of the clerk. This'view seems to he correct, because tlie subsequent section directs what shall be done if the judge will not permit it to lie filed. Affidavits are to be furnished ou each side, from which this court will decide ou the disputed fact. The judge might well, then, refuse his permission to the filing, ou tlie ground that he did not believe it was true; and if he thought so, it would have been right and proper ill him to refuse, or withhohl'his permission to its being filed, leaving the facts in dispute to be ascertained by affidavits, as provided in sectiou 102 of the act. The judge, for aught that appears in this case, knew nothing about the filing of tiie paper; it was such an entry as tlie clerk would make on any paper in his office handed to him by one of tlie counsel. To allow a record to be made of a fact adjudicated is a great innovation; and it would he dangerous to give the law a lati-tnilinous construction. Its requisitions should therefore he strictly enforced. The paper presented! not being authenticated In the way that is believed the law required, cannot be received as a part of the record. The record, stripped' of this paper offered as a substitute for a bill of exceptions, shows no errors or grounds for reversing tlie judgment of the court below.

If it had been in fact shown that there had been no service, and the defendant liad liad no opportunity to file his defense iu the Justice’s Court, tlie spirit of the act requiring such defenses to he set up-in the Justice’s Court would not have been infringed by allowing such defense to be set up in the District Court, and he ought to have been allowed so to do. The transcript sent up from the Justice’s Court, however, shows (hat ho prayed an appeal the same day that the judgment was rendered against him. lie did not ask a new trial before the justice, which he ought to have done. There can be no doubt that in truth the citation was served, although the justice failed to show it in his transcript.

Note 30.—Jones v. Thurmond, 5 T., 318.

Judgment affirmed.  