207 S.W. 594 | Tex. App. | 1918
Lead Opinion
We are asked to reverse this judgment *595
upon the sole ground that the trial court failed to file its findings of fact and conclusions of law upon proper and seasonable request, having been filed as provided by article
"It does not appear that the omission of the trial judge to duly file his conclusions has prevented a proper presentation of the questions involved in this appeal, nor has it operated to the prejudice of appellants in presenting their appeal. It does not therefore, in itself, warrant a reversal of the judgment." Rule 62a (149 S.W. x).
Affirmed.
Concurrence Opinion
The record discloses that judgment against appellants was rendered January 4, 1918. Assignments of error, containing a number of specifications, were filed March 18, 1918. Appellants filed the transcript in, this court on March 25, 1918. Thereafter, and in due time, appellee filed its motion in this court for permission to file the statement of facts, which was granted, and the statement was filed. Attorneys for appellants declined to agree to same, and it was prepared by the trial court. Upon its face it appears to be fair and complete, and there is nothing to indicate the contrary. Appellants' brief was filed long subsequent to the filing of the transcript and statement of facts. The sole ground of error presented in the brief is the failure to file the findings of fact and conclusions of law. The issues in this case are few and simple, and upon the facts reflected by the pleadings and evidence, I see no reason why appellants could not have properly presented all of the assignments which they filed in the lower court, and had the merits of their appeal decided, notwithstanding the failure of the trial court to file findings and conclusions.
Where the record discloses that appellants have been deprived of no substantial right by the failure of the trial court to file his findings and conclusions, and has not been thereby prevented from making a fair presentation of the merits of his appeal, I think it clear, upon the authorities cited in the opinion of the Chief Justice, that there should be no reversal by reason alone of such failure. I attach no importance to the fact that the statement of facts was not an agreed one. If it was fair and complete, that is all appellants have a right to expect of any statement of facts.
I do not desire to be understood as holding that trial courts are at liberty, at will, to disregard the plain provisions of article 1989 and deprive litigants of the right therein granted. I merely hold that in this particular case appellants were not deprived of any substantial right by the omission of the trial court, and are therefore not entitled to a reversal.
For this reason, I concur in the affirmance.
Addendum
Judge Conner's dissenting opinion in Emery v. Barfield,
"Possibly the able judge who tried the case deemed it immaterial to so file his conclusions, in view of a line of decisions of our courts holding that a failure to comply with the statute by filing conclusions when seasonably requested is not a sufficient ground to cause a reversal of a judgment on appeal where, as in this case, there is a statement of facts. See Jacobs v. Nussbaum [
"None of these cases go so far as to hold that it is not error to fail to file conclusions when properly requested, and it will be found, we think, to be substantially the uniform rule to reverse the judgment in case of such failure where there is no statement of facts or where the evidence exhibited in the statement is conflicting. See Wandry v. Williams,
"In the case now before us the evidence indicates several possible theories for appellee's recovery, none of which is free from difficulty. For instance, it may possibly be contended that the 120 bales of cotton burned in fact weighed more than is shown by the gin weights at Myra, for which excess appellant should account under the terms of the original agreement between the parties, or it may be contended that, regardless of the issue of an excess, appellant should account to appellee for money had and received under the terms of the agreement, if any, with the railway company's claim agent. But these are mere conjectures. It cannot be said to be clear that appellee was entitled to recover upon either theory suggested, and the very least that may be said of the testimony is that it is conflicting, and appellant under the law has a clear right to have the conflict determined in a court having original jurisdiction for the determination of conflicting evidence; this court having no such power.
"In accordance with the authorities cited, it is ordered that the judgment be reversed and the cause be remanded."
As is thus pointed out, all of the cases, apparently, where a judgment has been affirmed, notwithstanding the failure of the trial court to file findings and conclusions, proceeded upon the assumption that the facts upon the material issues in the case were substantially undisputed, and that it therefore affirmatively appears the failure was without probable harm.
In the case at bar, there were three issues of fact presented, viz.: Was the railroad company negligent in handling the animals? Were they damaged by reason of any such negligence? And, if so, the amount of such damage. Upon each of these issues, the evidence was conflicting. This court is unable to determine what the finding of the trial court was in respect to these several issues. The trial court may have found that the company was negligent, but that the animals had not been damaged, or its findings may have been vice versa. Or it may be that the court found all of these issues of fact in favor of the appellants, but may have deduced an incorrect legal conclusion. We are without any information as to the basis of the court's action in rendering judgment for the defendant. In this condition of the record, we are now of the opinion that we erred in holding that the failure of the trial court did not prevent appellants from making a fair presentation of their appeal. It may be that had the court filed the findings and conclusions, the appellants would not have been able to show any reversible error, but we cannot so presume. In support of the conclusion now reached, see the following authorities: Schofield v. Bank,
The motion for rehearing is granted, and the cause now reversed and remanded.