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260 S.W.2d 240

Punch v. Gerlach

Court of Appeals of Texas

Decided June 18, 1953

Court of Appeals of Texas · decided 1953-06-18

Key passage — most relied on by later courts

“This rule for all practical purposes is the same as the old statute. It is a well settled rule that failure to file the statement of facts in the trial court is fatal to its validity and vitality. The reviewing court on its own motion will strike such an unfiled statement of facts, and it will not be considered.”

quoted by 1 later decision, including Gonzales v. United States Fidelity & Guaranty Co.

Relies on Quijano v. Howard · Vela v. Southland Life Ins. Co. · Howard v. Mexican-American Commercial Co.

Good law ✅— No negative treatment on recordhow we know

Decided 1953-06-18

How this case has been cited

Cited by 10 later decisions — most recently March 1970

10 state decisions

70195319601970decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1On Motion For Rehearing

¶2Appellants’ motion for rehearing presents argument and authorities to the effect that failure to file the statement of facts in the trial court was a mere informality and was waived by appellees, under Rule 404, T.R.C.P. Vela v. Southland Life Ins. Co., Tex.Civ.App., 212 S.W.2d 210, 218, is cited as the latest authority on this question. We note that in that case, the filing in the trial court later than fifty days after judgment was what the court held to be waived. The statement of facts was filed in the trial court, but filed late.

¶3We find no authority holding that breach of the requirement in Rule 381, T.R.C.P., that the statement of facts be filed in the trial court, is a mere informality of the record which can be waived. Counsel in his brief would have the opinion in Vela v. Southland Life Ins. Co., supra, hold that “failure to file” was waived, -but the opinion holds that what was waived was “failure to file” in “fifty days”. Likewise, in his brief in support of his motion for rehearing, counsel states that in Quijano v. Howard, Tex.Civ.App., 237 S.W. 319, (writ dismissed Tex.Com.App., 249 S.W. 188) it is held on a motion to strike a statement of facts “because the same was not filed in the trial court” that this was such an informality as could be and was waived. This statement is erroneous. The holding in Quijano v. Howard, supra, is that the motion to strike, the statement of facts because a copy was not filed in the trial court was overruled, and that the filing of such copy was an informality which was waived.

¶4We have found no authority in support of appellants’ contention. The motion for rehearing is overruled.

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