Gulf Manufacturing & Lumber Co. v. Newton

• Decision Date: 17 April 1930
• Docket Number: No. 1959.,1959.
• Citation: 27 S.W.2d 873
• Parties: GULF MANUFACTURING & LUMBER CO. v. NEWTON.
• Court: Texas Court of Appeals

Page 873

27 S.W.2d 873

GULF MANUFACTURING & LUMBER CO. v. NEWTON.

No. 1959.

Court of Civil Appeals of Texas. Beaumont.

April 17, 1930.

Appeal from Newton County Court; E. A. Lindsey, Judge.

Action by the Gulf Manufacturing & Lumber Company against Wiley Newton. From the judgment, plaintiff appeals.

Reversed and remanded.

Conley, Renfro & Keen, of Beaumont, for appellant.

Forse & Forse, of Newton, for appellee.

O'QUINN, J.

Appellant brought this suit in the county court of Newton county, Tex., to set aside a judgment rendered in a former suit between the same parties. The instant case was set to be tried on October 18, 1929. On that day the case was tried before the court, and judgment rendered for defendant. Exception to the judgment was taken, and notice of appeal given, and the appeal perfected. Appellant duly requested the court to make and file his findings of fact and conclusions of law. The court failed to file his findings of fact and conclusions of law within the time required by the statute, to which failure appellant duly excepted. The court allowed the bill of exceptions, but attached thereto the following qualification: "* * * The trial court did not refuse to prepare said findings of fact and conclusions of law but on account of the many complex duties of the said trial judge, to wit: Being away from the county on official duties, presiding over the commissioners' court and preparing orders for road bond election, said requested findings were not prepared and filed until 9th day of November, A. D. 1929, only three days after time had expired for filing same, which delay was necessary under all the circumstances."

Appellant's only assignment of error presents the failure of the trial court to make and file his findings of fact and conclusions of law, after due request therefor, within ten days after the adjournment of the court, as reversible error.

The court's making and filing his findings of fact and conclusions of law later than ten days after the court adjourned, though only three days, was not a compliance with the law, article 2247, R. C. S. 1925. Findings of fact filed after the expiration of the ten days allowed by law are a nullity and cannot be considered for any purpose. Bray v. Peters (Tex. Civ. App.) 283 S. W. 591; Jefferson v. Williams (Tex. Civ. App.) 286 S. W. 614.

But appellee, by counter proposition, insists that appellant's assignment of error cannot be considered because same was not filed in the trial court and brought up in the transcript. The record discloses that the assignment of error was not filed in the trial court, but that same appears for the first time in appellant's brief. At a former day of this term we sustained appellee's counter proposition, and further held that the matter complained of by appellant was not fundamental error, and affirmed the judgment. After a more careful and thorough consideration of the question involved, we have concluded that our refusal to consider appellant's assignment of error, because same was not filed in the trial court and brought up in the transcript and the consequent affirmance of the judgment, was error. The rule is well settled that the statutory requirement that assignments be filed with the clerk and brought up in the transcript is directory only, in so far as it relates to matters occurring after the judgment of the trial court. Accordingly assignments relating to matters which occurred after rendition of the judgment are not required to be filed in the trial court and incorporated in the transcript, but need only be incorporated in the brief of the appellant or the plaintiff in error. 3 Tex. Jur. § 586; Johnson v. Poteet (Tex. Civ. App.) 279 S. W. 902 (writ refused); Busbee v. Busbee (Tex Civ. App.) 231 S. W. 441; Moody v. Bonham (Tex. Civ. App.) 178 S. W. 1020; District Court Rule 101. On first consideration, it was thought that the matter complained of, the failure of the court to file his findings of fact and conclusions of law within ten...