Johnson v. Frost

On Motion for Rehearing.

Appellants and appellees have both filed motions for rehearing. One of the grounds urged in appellees’ motion is our failure to sustain the twelfth assignment of error, complaining that the trial court erred in failing to file findings of fact and conclusions of law. The qualification by the trial judge to the bill of exceptions referring to this failure is as follows: .

“This bill of exception examined, found correct, signed, approved and ordered filed as a part of the record in this case with this qualification, at the time the court rendered judgment, neither party requested findings to be filed. At some other time, the exact date of which the court cannot remember, an attorney for defendant ’phoned me at my office that be wanted a special finding of facts on a couple of points and would made a request for same. At no time thereafter was such request if any brought to my attention and action invoked on same, and to this good day I have never seen the like request, if .any.

“Harry Tom King, Judge Presiding.”

Appellants cite the cases of Poulter v. Smith, 149 S. W. 279, by this court; Emery v. Barfield, 156 S. W. 311, by this court, Judge Conner, who wrote the opinion, dissenting; Peers v. Williams, 174 S. W. 865, by this court; Bloch v. Bloch, 190 S. W. 528; Guadalupe County v. Poth, 153 S. W. 920; Kyle v. Blanchette, 158 S. W. 796; Lester v. Oldham, 208 S. W. 575 — in support of their contention that, even though a statement of facts is in the record, where the evidence is conflicting upon material issues the failure of the trial court to file findings of fact upon request is reversible error. In Barfield v. Emery, 107 Tex. 306, 177 S. W. 052, where a writ of error was applied for in the case of Emery v. Barfield, 156 S. W. 311, our Supreme Court, in an opinion by Chief Justice Phillips, reversed the judgment of the majority of the Court of Civil Appeals and sustained the dissent of Chief Justice Conner, and remanded the cause to the Court of Civil Appeals for further consideration. In the instant case, the statement of facts consists of some 185 pages, agreed to by attorneys in the ease as “a full, true, and correct statement of the evidence admitted by1 the court, upon the trial of the above entitled and numbered cause,” and is duly approved by the trial judge. While it is true that the evidence in some respects is conflicting, yet, from a careful study of the same, we have found no difficulty in determining what the trial judge’s findings of fact were as to the facts in the case, and believe that those findings were amply sustained by the evidence. Even if the request for the findings of fact had been brought to the attention of the court, which the trial judge denied, we conclude that no injury has resulted to the appellants by the failure to file such findings. In this respect the record is different fromi that disclosed in the case of Peers v. Williams, supra.

[8] However, it appears from the qualification by the trial judge of appellants’ bill of exception that the request or motion for the findings of fact was never called to the attention of the trial judge, and that his action thereon was never properly invoked. Hence we conclude that there was no error in our original opinion in overruling this assignment.

Both the appellants’ and the appellees’ motions for rehearing are overruled.