Gourley v. Eastman , 1934 Tex. App. LEXIS 341 ( 1934 )

Three simple questions are raised in this appeal. The case was tried by the court, without a jury. There is no statement of facts, nor findings of fact by the trial judge.

Appellant's first complaint is that the trial judge permitted appellee to file an amended petition after the parties announced ready. There is nothing in the record to show the circumstances of the filing of that pleading, but it does appear that it was filed on May 3, 1933, that appellant filed an answer on the same day, directed to said amended petition, and judgment was likewise rendered on that day. There are several reasons why appellant's complaint is without merit.

In the first place, since the record shows that the amended petition was filed on the day of announcement by the parties, it will be presumed, if such presumption be necessary to support the judgment, that it was filed before the announcements were made.

In the second place, the matter was one for the determination of the trial judge in his discretion, which does not appear to have been abused in this case.

And, finally, as appellant's amended answer is addressed directly to the amended petition, the alleged tardy filing of the latter resulted in no injury to appellant, whose first assignment of error is accordingly overruled.

It is next urged that the judgment be reversed because the trial judge failed to file written findings of fact and conclusions of law, notwithstanding appellant's timely request therefor. This contention, presented in appellant's second assignment of error, must be overruled in the absence of any showing that appellant pursued the procedure prescribed by statute as a condition to an appellant's right to "complain of the failure" of the judge to prepare or file his findings and conclusions. Article 2247, R.S. 1925, as amended by the Acts of 1931 (42d Leg.) p. 118, c. 76, § 1 (Vernon's Ann.Civ.St. art. 2247).

The sufficiency of appellant's third assignment of error depends entirely upon the nature and effect of the evidence adduced upon the trial. Wherefore, in the absence of a statement of facts, the questions presented in that assignment cannot be reviewed.

The judgment is affirmed.