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McShan v. Pitts , 538 S.W.2d 266 ( 1976 )


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  • 538 S.W.2d 266 (1976)

    C. Hunter McSHAN, Appellant,
    v.
    Anthony PITTS, Appellee.

    No. A 3754.

    Court of Civil Appeals of Texas, San Antonio.

    June 16, 1976.

    William H. Ervine, Jr., Kerrville, for appellant.

    H. Charles Strauss, Jr., Kerrville, for appellee.

    PER CURIAM.

    Appellee filed his motion for leave to file a supplemental transcript consisting of the findings of fact and conclusions of law filed on April 27, 1976 in the above cause. This motion was opposed by appellant for the reason that the findings of fact and conclusions of law, although requested by appellant, were not timely made so as to afford appellant the opportunity to object and request additional findings. See Rules 297 and 298, Tex.R.Civ.P. The transcript was filed in this Court on April 19, 1976.

    An examination of the record demonstrates that appellant timely requested the trial court to file findings of fact and conclusions of law and properly called to the attention of the trial judge his failure to file same. The rule in this State has been that the failure of the trial court to file findings of fact and conclusions of law when properly requested constitutes reversible error, unless the record before the appellate court affirmatively reflects that the complaining party has suffered no injury. Wagner v. Riske, 142 Tex. 337, 178 S.W.2d 117 (1944). Here the findings of fact and conclusions of law were made, but not in time for appellant to have any opportunity to request additional findings.

    We conclude that instead of reversing the judgment, the proper order is one directing the trial court to file its findings of fact and conclusions of law so as to give appellant the opportunity to request further, additional, or amended findings in accordance with Rule 298, Tex.R.Civ.P. The trial court is directed to file his original findings of fact and conclusions of law no later than July 1, 1976. Appellant will then have five days to request further, additional, or amended findings. After final action on such findings of fact and conclusions of law, same shall be filed in our Court by supplemental transcript. The time for filing appellant's brief shall begin to run at the time such supplemental transcript is filed.