
    F. Juergens v. Missouri, Kansas & Texas Railway Company.
    Delivered June 17, 1897.
    1. Practice on Appeal—Statement of Pacts.
    A statement of facts will be stricken from the record where it is prepared in violation of the rule of court which forbids that the notes of a stenographer, taken at the trial, or copy thereof, shall be filed as a statement of facts.
    3. Same—Judgment Affirmed, When.
    Assignments of error can' not be determined in the absence of a statement of facts, and in such a case, if the record discloses no fundamental error, the judgment appealed from must be affirmed.
    Error from Harris. Tried below before Hon. S. H. Brashear.
    
      Turner, Barttlingch. & Qeorgi, for plaintiff in error.
    No brief for defendant in error reached the Reporter.
   PLEASANTS,

Associate Justice.—-The statement of facts in this case, upon motion of the defendant in error, was stricken from the record at a previous day of this term of the court. The ground upon which the motion was based, and upon which the order sustaining the motion was made, was the violation, in the preparation of the statement, of the rules prescribed by the Supreme Court for trial courts. These rules provide that neither ,the notes of a stenographer, taken upon the trial of a cause, nor a copy thereof, shall be filed as a statement of facts; but that the contents of such notes must be condensed, when they are used in preparing a statement of facts. It is evident from an inspection of the transcript that these rules, in the language of the motion, have been “flagrantly violated” in this case. Counsel for the appellant is charged with the duty of having prepared and filed a statement of the facts, and the rules prescribed for his guidance in the performance of this duty must be observed, or he must take the consequence of his delinquency. The motion of the plaintiff in error to rescind the order excluding the statement of facts has been duly considered, and we are constrained to deny the motion. The grounds of the motion are not such as, in our judgment, would authorize us to annul our action heretofore taken upon the motion of defendant in error. But were we to disregard the rules which usually ■govern courts in determining motions of this character, and rescind the order excluding the statement of facts, and thus afford counsel an opportunity to amend the statement, we can not conceive how the defect complained of can be remedied at this date, and for this reason, if not for others, the motion should -be denied.

None of the assignments of error can be determined by us in the absence of a statement of facts; and, as the record discloses no fundamental error, the judgment appealed from must be affirmed.

Affirmed.  