Preibisch v. Lay

122 S.W.2d 670 | Tex. App. | 1938

This is an appeal from a judgment rendered on the verdict of a jury by the County Court of Waller County. The cause itself originated in a justice court of Waller County. The appeal is here upon the transcript without either a Statement of Facts, or Finding of Facts. As the pleadings of appellees, if they were proved, as we must assume they were, are sufficient to support the court's judgment, we see no basis, in the absence of a Statement of Facts, to set aside such judgment. Westerly Supply Corporation v. State, Tex. Civ. App. 89 S.W.2d 244; Anchor v. Wichita County Water Imp. Dist. No. 2, 129 Tex. 385,103 S.W.2d 135, 112 A.L.R. 70, affirming 123 Tex. 105, 66 S.W.2d 657. If appellant is attempting to bring to our attention by bills of exception certain evidence that he may have introduced on the trial of the cause, and may rely on as inconsistent with the facts found by the judgment of the court below, we must rule that this cannot be done. Dull v. Drake,68 Tex. 205, 4 S.W. 364. Furthermore, it appears from the judgment of the court below that the jury found, as a fact, that the mortgage on which appellee A. A. Lay based his claim of prior right to $113.92 of the $133.45 on deposit in the bank, was placed of record in the Mortgage Records of Waller County before appellant's attachment lien was perfected. Evidence inconsistent with this priority, in the absence of a Statement of Facts, cannot be considered by us, and cannot even be brought to our notice — at least not in the manner attempted by appellant.

As we affirm the judgment of the County Court, we content ourselves with this mere memorandum opinion indicating the point on which affirmance has been adjudged.

Affirmed.

MONTEITH, J., participating as Special Commissioner.