El Paso Construction Co. v. Reid

ON MOTION FOR REHEARING

Appellees Reid and Baeza have filed a request that this Court make findings of fact and conclusions of law. Courts of Civil Appeals have no authority to find facts in the first instance. Facts can only be found by the trier of facts, either the trial Judge or the jury in the trial Court. Courts of Civil Appeals, being reviewing Courts, review the evidence offered in support of the facts found by the trier of facts. Our determination of this case was based on a ruling made before any evidence was produced. Hence, no facts were presented for review. Our conclusions of law appear in the opinion.

Appellees urge that the entire cause should not be reversed, that they should be allowed to keep their judgment while Far-ah seeks relief against Kistenmacher, and that their judgment is separate and independent from the cause of action asserted by Farah against Kistenmacher. This does not take into account the relief sought by Farah and the case pleaded by it. Farah denied liability, and it specifically plead that Kistenmacher was the party responsible, pleaded specific acts of negligence on the part of Kistenmacher, and “That each of said acts as above set forth constitutes negligence and proximate cause of the injury and damage to the Plaintiffs, if any.” If Farah had been permitted to go to trial on that and been successful, then the plaintiffs’ judgment would have been against Kistenmacher, and Farah would have gone out of the case.

Appellees also contend that the statute of limitations did not begin to run until judgment was obtained against Farah. The question presented to this Court, and the only one we could decide, was whether or not the statute had run at the time the trial Court ruled that it had. The burden of proof rests on the party asserting limitations. Since the trial Court’s decision was based on the pleadings, the ruling would be incorrect unless limitations is established on the face of the pleadings of the party against whom limitations was claimed.

We adhere to our original holding. The amended motion for rehearing is overruled.