Boyette v. Glass , 1911 Tex. App. LEXIS 659 ( 1911 )

The suit grew out of the exchange of land between the parties. The appellee claimed that the title to the land received by him in the exchange had wholly failed, and he sued to have himself reinvested with the title deeded by him to appellants, or, in the alternative, to recover as unpaid purchase money the value of the land he received in exchange with foreclosure of the vendor's lien. The trial was to the court, and judgment was rendered for appellee for $300 and interest with foreclosure of the lien.

By the first assignment of error complaint is made that the trial judge failed to make and file conclusions of fact and law after request was made.

It is correct that it has been ruled that it is reversible error for the trial judge to fail or refuse to make up and file conclusions of fact and law when proper and seasonable demand is made therefor. Wandry v. Williams (Sup.) 124 S.W. 85.

It has, however, been decided that such act, if occurring, is a matter that must be brought before this court by bill of exception to the act of the judge before this court is authorized to consider it. Cotulla v. Goggan, 77 Tex. 32, 13 S.W. 742; Landa v. Heermann, 85 Tex. 1, 19 S.W. 885. For authority of this court to look to an affidavit presenting the matter, see Mercantile Co. v. Wathen, 93 Tex. 622, 57 S.W. 946. The assignment, therefore, as the record is presented, is without the proper basis for our consideration. This ruling applies to the second assignment as well.

As there is no statement of facts here, the assignments relating to the evidence cannot be determined. And the assignments relating to the exceptions to the petition do not present any reversible error.

The judgment was ordered affirmed.