
    GOLDBERG v. ALLEN.
    (No. 6487.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 18, 1922.
    Rehearing Denied Nov. 22, 1922.)
    1. Appeal and error <&wkey;544( I) — Errors involving reference to facts not considered where no statement of facts is in record.
    Where all assignments of error call in question the state of the case as made by the evidence, and there was no statement of nor conclusions of facts in the record, the assignment will not be considered.
    On Rehearing and Application for Permission to File Statement of Facts.
    2. Appeal and error <&wkey;628(I) — Excuse for failure to file statensent of facts insufficient.
    Where transcript and printed briefs were filed over a year before submission of the cause without' any statement of facts having been filed or without effort to do so, which was due solely to oversight of counsel or their stenographer, the excuse for failure to so file was insufficient.
    3. Appeal and error <&wkey;>624 — For good cause, statement of facts may be filed at iater date than fixed by statute.
    The statement of facts is by the statute and rules of court made part of the record, and should be filed with the transcript; but it is in the coui-t’s discretion to allow it to be filed at a date later than that fixed for good cause shown.
    
      Appeal from District Court, MeLennan County.
    . Action by Collin Allen against B. R. Goldberg. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Taylor & Hale, of Waco, for appellant.
    Stanford & Stanford, of Waco, for appel-lee.
   BRADY, J.

Appellee sued appellant for damages for alleged personal injuries sustained by liim from being bitten by appellant’s dog, wbicb was alleged to have been afflicted witb rabies. Tbe petition alleged negligence on tbe part of appellant in permitting tbe dog to run at large, witb knowledge that tbe animal was afflicted witb rabies, and that in sucb condition be was vicious and would expose tbe public, including appellee, to danger of being bitten. Appellant answered by general demurrer, general denial, and specially denied tbe alleged negligence, but pleaded that tbe injuries of ap-pellee were due to bis own contributory negligence.

Tbe ease was submitted to tbe jury upon special issues, wbicb were all favorable to appellee, including an award of $750 for damages. Judgment was entered for appel-lee in conformity to tbe yerdict, and tbe findings are sufficient to support the' judgment.

Tbe brief of appellant contains a number of assignments of error, complaining of the submission of one of tbe special issues, because tbe evidence does not raise the issue, and that tbe answer of tbe jury to sucb issue was contrary to tbe evidence; and other assignments complaining of tbe refusal to give certain requested charges, wbicb it is claimed were required by tbe evidence; and also complaining of certain definitions of negligence given in tbe charge.

There is no statement of facts in tbe record, nor are there any conclusions of fact. Appellee’s counsel insist that since all tbe assignments call in question tbe state of tbe case as made by tbe evidence, or are dependent upon tbe condition of tbe evidence, this court should overrule or refuse to consider any of appellant’s assignments of error, citing tbe following cases: Pace v. Price et al. (Tex. Civ. App.) 45 S. W. 203; G., H. & S. A. Ry. Co. v. Perkins (Tex. Civ. App.) 73 S. W. 1067; G., H. & S. A. Ry. Co. v. Keen (Tex. Civ. App.) 73 S. W. 1074; Texas & P. Ry. Co. v. McAllister, 59 Tex. 349.

Witb this contention we are constrained to agree. Tbe facts proven on tbe trial not being in any manner shown in the record, we are unable to determine that there was any error committed by tbe trial court in tbe particulars complained of, where sucb alleged errors necessarily involve a reference to ihe facts of tbe case. This is manifestly true of all assignments, except, perhaps, those complaining of tbe definitions in tbe charge. As to tbe latter, we are of tbe opinion that it has not been made to appear that there was any error whatever in tbe definitions given, even abstractly considered; but, in any event, we are unable to say that there has been x-eversible error committed in this respect, since there is neither statement of facts nor conclusions of fact in tbe record.

In addition to tbe authorities above cited, we cite tbe following; Fallen v. Weatherford (Tex. Civ. App.) 158 S. W. 1174; Connor v. Mangum (Tex. Civ. App.) 127 S. W. 256; Kruegel v. Johnson (Tex. Civ. App.) 112 S. W. 774; Connell v. Nickey (Tex. Civ. App.) 167 S. W. 313; Bastrop Growers’ Ass’n v. Cochran (Tex. Civ. App.) 171 S. W. 294; Hines v. Sparks (Tex. Civ. App.) 146 S. W. 289; Ellerd v. Randolph (Tex. Civ. App.) 138 S. W. 1171.

Tbe judgment will be affirmed.

Affirmed.

On Rehearing and Application for Permission to File Statement of Facts.

On tbe original bearing of this cause, we affirmed tbe judgment of the’eourt below and refused to consider tbe assignments of error, because there was no statement of facts in tbe record.

Appellant has filed a motion for rehearing, and has asked leave to file tbe original statement of facts, upon tbe ground that tbe failure to file same was not due to tbe fault or laches of the appellant or bis attorneys of record, but was tbe result of causes beyond their control.

We have, carefully examined tbe motions and tbe affidavits attached in support thereof, and find that no' sufficient excuse has been presented for tbe failure to file a statement of facts. It is clear that this was due solely to tbe oversight or neglect of counsel for appellant, or their stenographer. It appears from tbe affidavits that when appellant’s counsel bad prepared'their brief, they instructed their stenographer to forward tbe record to tbe clerk of tbe Court of Civil Appeals, and that counsel believed tbe statement of facts had been filed, until informed by tbe written opinion of this court that sucb was not tbe case. Tbe transcript and printed briefs for appellant were filed in this court on tbe 29th day of August, 1921; so that over a year bad elapsed before tbe submission of tbe cause without any statement of facts having been filed, and without any effort to do so. It appears from tbe counter- áfedavits filed here that tbe fault was wholly that of appellant’s counsel, or their employe, and that counsel for appellee were in no wise to blame.

Tbe statement of facts is by tbe statutes and rules of court made -a part of tbe record and should be filed witb tbe transcript. However, we have no doubt of our discretion to allow the statement of facts to be filed at a date later than that fixed by statute, for good cause shown. In the circumstances of this case, we are of the opinion that appellant should not be heard to insist that the statement of facts be now filed, after the long delay involved and after submission and a decision by this court, since the excuse offered is wholly one of oversight or neglect. The motion comes too late. Without intending to be too critical, we thinls it would be difficult to imagine a clearer case of neglect.

This court will not give literal enforcement to the rules, unless so compelled, where the effect would be to hinder or defeat justice. Our discretion, however, should be exercised to promote the due and orderly administration of justice. We cannot sanction the failure to observe the statutes and rules manifest in this case. It is no answer to say that appellant should not be penalized for the omissions of his counsel. He was represented by attorneys of recognized ability, and their acts and omissions must be deemed to be his, and we must decline to reopen the case under the excuse shown. Royal Ins. Co. v. Ry. Co., 53 Tex. Civ. App. 154, 115 S. W. 117, 123; Shaw v. Schuch, 58 Tex. Civ. App. 255, 124 S. W. 688.

Both motions are overruled.

Motions overruled. 
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