Hamilton v. Eiland

• Decision Date: 04 December 1915
• Docket Number: (No. 865.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 181 S.W. 260
• Parties: HAMILTON v. EILAND.
• Court: Texas Court of Appeals

181 S.W. 260

HAMILTON v. EILAND.

(No. 865.)^*

Court of Civil Appeals of Texas. Amarillo.

December 4, 1915.

On Motion for Rehearing, January 5, 1916.

Appeal from District Court, Hutchinson County; F. P. Greever, Judge.

Action by Enoch Eiland against George P. Hamilton. Judgment for plaintiff, and defendant appeals. Affirmed.

Hoover & Dial, of Canadian, for appellant. Turner & Rollins, of Amarillo, and J. M. Elliott, of Memphis, for appellee.

HENDRICKS, J.

The appellee, Eiland, sued the appellant, Hamilton, on four promissory vendor's lien notes, for the establishment of a debt and to foreclose the lien, the appellee being the original vendor and the appellant the original vendee. Among other defenses, the defendant specially pleaded that prior to the purchase of the land by him, the lines and boundaries of the land purchased were pointed out by the plaintiff and relied upon, and but for which he would not have purchased said land; that the boundaries so represented were not the real boundaries of the land purchased. Defendant also pleaded a breach of the warranty in the deed, as well as a breach of an oral guaranty alleged to have been made at the time the land was pointed out, and asked for damages for the loss of certain improvements placed upon a part of the lands leased to the defendant, and also for an abatement of a part of the purchase price on account of the loss of a portion of the land. The court, without a jury, rendered judgment against the defendant for the debt and foreclosure.

Appellant's first assignment is that the trial court erred —

"in failing and refusing to file findings of fact and conclusions of law after having been duly requested to do so by the defendant, and within the time and manner prescribed by law."

There is no statement of facts in the record; and appellant's lack of a bill of exceptions, exhibiting that he made a request to the trial court with the court's failure to file the same, is attempted to be justified by affidavits presented to this court, declaring this condition:

"That after the court rendered judgment for the plaintiff they [counsel] requested him [the judge], within the time prescribed by law, and immediately, to file his findings of fact and conclusions of law in said cause. * * * That such findings and conclusions have never been filed, and that Hon. F. P. Greever, presiding judge of said court, and the identical person who tried said cause, is, at the time of making this affidavit, dead, having departed this life on April 2, 1915, and that for some reason unknown to the affiants, the request for findings and conclusions was not noted upon the docket."

The transcript shows that the district court convened on the 8th day of March, 1915, and adjourned on the 15th of said mouth, the judgment in the cause having been rendered upon the prior date.

The appellant argues that the request to the trial court does not have to be in writing, citing particularly the case of Dennis v. Kendrick, 163 S. W. 693, decided by this court. The question, however, is more far-reaching than one of oral request, but is one whether according to this record, any request that we can judicially notice is shown. It is true that the trial judge, if a request has been made for findings of fact and conclusions of law, may prepare and file the same within 10 days after the adjournment of court, and if the affidavit in this case could be considered for any purpose, it would show that the conclusions were not filed, and that the trial judge died before the expiration of the full time within which the defendant had the right to present and have approved a bill of exceptions, affording a basis for revising the error; appellant presenting the affidavit as a substitute for a bill of exceptions, presenting the above condition as an excuse therefor. It may be that the incomplete condition of this record is one of hardship, but:

"A court of civil appeals cannot correct the record of a case by hearing testimony, nor can it inquire into acts occurring subsequently to the rendition of the judgment and not made a part of the record." Mercantile Co. v. Wathen, 93 Tex. 622, 57 S. W. 946.

The exceptions are inquiries involving jurisdiction. Same case, supra. See Bath v. Houston & T. C. R. R. Co., 34 Tex. Civ. App. 234, 78 S. W. 994; Applebaum v. Bass, 113 S. W. 173. Also:

"It is the duty of a party who here seeks to secure a reversal of the judgment of a lower court to bring to this court a record of the proceedings sufficiently full to show clearly the error of which he complains. If he bring a record which shows the proceedings only in part, every reasonable presumption will be indulged in favor of the court's ruling, and the case will not be reversed unless it appear that upon no possible state of the case could the ruling be upheld." Torrey-Davidson & Grosscup v. Cameron & Co., 74 Tex. 190, 11 S. W. 1088.

In the absence of a bill of exceptions it has always been the rule that it will be presumed that the trial judge knew nothing about the request. Supreme Commandery Knights v. Rose, 62 Tex. 321. In that case there was a motion for conclusions, but nothing to show it had been called to the attention of the trial court.

The proper preservation and presentation in this record of a request to the court for the conclusions is the premise upon which appellant has to build, and the fact that the trial judge died prior to the expiration of the full time within which to obtain a bill of exceptions would not, we think, be a sufficient excuse to this court in the manner presented. The fact of the request, whether oral or written, is necessarily a part of the judicial proceeding, and must be incorporated into the record for our review in some appropriate manner to avail the defendant. This court, in its appellate jurisdiction, cannot now incorporate it because the judge died before the full time expired to obtain the bill of exceptions. Appellant made no application to the succeeding trial judge for the purpose of embodying that fact and that part of the proceeding in the record; and this is a fact of the record which could have been proven to belong to the record.

A trial court has the continuing power, after an adjournment for the term, to make its minutes and record speak the truth, but which has been in some manner omitted from its minutes; and this may be done nunc pro tunc in some instances, and even as to orders, though no written memorandum of the proceeding can be found to support a nunc pro tunc order. Ft. Worth & Denver City Ry. Co. v. Roberts, 98 Tex. 43, 81 S. W. 25. This is an inherent power, possessed by a court over its own records, enduring for the sake of verity. Coleman v. Zapp et al., 105 Tex. 494, 496, 151 S. W. 1040.

We see no...