Valley Box & Crate Factory, Inc. v. Acker

COBBS, J.

Appellant sued appellees for the recovery of real estate,, alleging appellees executed’ and delivered to E. J. Pennell a warranty deed conveying the premises in question but retained a vendor’s lien to secure payment of one certain promissory note of even date with the deed, executed by Pennell and payable to the order of appellee B. A. Acker; that said B. A. Acker, by instrument in writing, for valuable consideration and before maturity, transferred and assigned the note and lien to appellant.

Appellees, not being satisfied with appellant’s statement of the nature and result of the suit, have set out in their brief, as their statement, the findings of fact and conclusions of law made by the court.

The real question complained of is reserved by a bill of exception as to the failure of the court to prepare and file his findings of fact at the time requested and the conclusions of law within the period 'of time prescribed by statute, and within ten days from the adjournment of said term of court. In approving the bill of exceptions the triad court qualified the same as follows: “My_ findings ofifact and conclusions of law were filed on the 15th day of January, 1930, and before transcript was applied for.” So there was nothing to prevent appellant from taking same up with the record. These findings did not come up in the record, but appellees discovering the omission duly filed its “Motion for permission to file supplement transcript,” and as there was no separate answer filed objecting to its consideration, the motion is therefore granted and the same will be considered by the court.

While the findings seem very full, they must be regarded as sustained by the evidence. The failure to file findings of fact and conclusions of law is not per se reversible error. Appellant failed to show that it suffered any injury in making a proper presentation of its case, for the reason had it desired these findings they were available to it, having been filed and of record before it applied for the transcript.

The court found the only issue in controversy in this case was in favor of appel-lees. Rule 62 A; Humble Oil & Refining Co. v. Johnston (Tex. Civ. App.) 5 S.W.(2d) 836; Riley v. Austin, 112 Tex. 216, 245 S. W. 907; Galveston, H. & S. A. R. Co. v. Stewart & Threadgill (Tex. Com. App.) 257 S. W. 526; Emery v. Barfield (Tex. Civ. App.) 156 S. W. 311; Springfield Fire & Marine Ins. Co. v. Whisenant (Tex. Civ. App.) 245 S. W. 963.

Findings of fact and conclusions of law were filed on the 8th day of January instead of the 5th day of January, and appellant did not apply for a transcript until the 13th da$-of March, about sixty days later. Nothing prevented appellant from making a proper presentation of its case on account of the delay of the court in not sooner filing it.

No new question is here presented because it has many times before been presented and decided. Humble Oil & Refining Co. v. Johnston (Tex. Civ. App.) 5 S.W.(2d) 836; Galveston, H. & S. A. R. Co. v. Stewart & Threadgill (Tex. Com. App.) 257 S. W. 526; Emery v. Barfield (Tex. Civ. App.) 156 S. W. 311; Riley v. Austin, 112 Tex. 216, 245 S. W. 907.

As disclosed in this case, appellant did not apply for the transcript until almost sixty days after the findings of fact and conclusions had been filed by the court. The judg/ment of the court advised appellant of the court’s finding of the real issue in the case. Riley v. Austin, supra, and adopted in Railroad v. Stewart & Threadgill, supra.

Appellant, in its brief, frequently alludes to the findings of fact, such as that the court erred in finding the Acker deed to be null and void. Springfield Fire & Marine Ins. Co. v. Whisenant (Tex. Civ. App.) 245 S. W. 963. The findings of fact are quite full and clearly sufficient to support the judgment.

The case has been fairly tried, and finding no error assigned sufficient to .reverse the case, the judgment is affirmed.