Opinion
No. 2066.
January 9, 1919.
Error from District Court, Lamar County; A. P. Dohoney, Judge.
Suit between Ben L. Billingsley and the Texas Midland Railroad. Judgment for the latter, and Billingsley brings error. Affirmed.
B. B. Sturgeon, of Paris, and Carden, Starling, Carden, Hemphill Wallace, of Dallas, for plaintiff in error.
Moore Hardison, of Paris, and Coke Coke and S. W Marshall, all of Dallas, for defendant in error.
To entitle him to have the document delivered to the clerk of this court December 23, 1918, considered as a statement of facts, plaintiff in error must have filed same in the court below within the time allowed by law for filing the transcript here — that is, he must have filed the document in the trial court within 90 days from August 23, 1918 (the date the citation in error was served), or not later than November 21, 1918. Articles 2073 and 1608, Vernon's Statutes; State v. Lincoln, 147 S.W. 1195; Ry. Co. v. Reek, 179 S.W. 699; McKenzie v. Beason, 140 S.W. 246; Raleigh v. Cook, 60 Tex. 438; Matthews v. Boydstun, 31 S.W. 814; Smith v. Ry. Co., 43 Tex. Civ. App. 204, 95 S.W. 11; Connally v. Saunders, 142 S.W. 975; Folts v. Ferguson, 24 S.W. 657; McGuire v. Newbill, 58 Tex. 314; Ross v. McGowen, 58 Tex. 603; Dennis v. Neal, 71 S.W. 387. As a matter of fact the document was not so filed until December 21, 1918. As, therefore, the document cannot be treated and considered as a statement of facts, this court cannot determine whether there is merit in the complaint made by plaintiff in error that the trial court erred in giving certain instructions and also in refusing to give certain other instructions to the jury. As the judgment is not attacked on any other ground, and is free from error apparent on the face of the record, this court cannot do otherwise than affirm it.