Kennedy v. Kennedy

• Decision Date: 26 February 1919
• Docket Number: (No. 6017.)
• Citation: 210 S.W. 581
• Parties: KENNEDY v. KENNEDY et al.
• Court: Texas Court of Appeals

210 S.W. 581

KENNEDY v. KENNEDY et al.

(No. 6017.)

Court of Civil Appeals of Texas. Austin.

February 26, 1919.

Rehearing Denied April 2, 1919.

Appeal from District Court, Williamson County; Ireland Graves, Judge.

Suit by John A. Kennedy against A. B. Kennedy and others. From an adverse judgment, the named defendant appeals. Affirmed.

Lawhon & McNair, of Taylor, Wilcox & Graves, of Georgetown, and Brooks, Hart & Woodward, of Austin, for appellant.

White, Cartledge & Wilcox and Dickens & Dickens, all of Austin, for appellees.

BRADY, J.

Jno. A. Kennedy brought this suit against A. B. Kennedy, Lee T. Kennedy, and others, for an accounting and partition of certain property, real and personal, which was alleged to be the community property of appellant, A. B. Kennedy, and his deceased wife, Maggie M. Kennedy. This appeal involves only the title to a 252-acre tract of land, all other issues having been settled or eliminated by agreement of the parties below.

This particular tract was claimed by appellant as his separate property, because it was alleged he bought and paid for said land with his separate funds, and while the deed was taken in the name of his wife, Maggie M. Kennedy, it was for the purpose and intent of making it a homestead, and that the deed was taken for his own benefit, to be held in trust by his wife for him. Appellant claimed his homestead right and designated 200 acres out of said tract as a homestead, in the event the title to the land should not be awarded to him. He prayed for judgment, declaring the 252 acres to be his separate property, and in the alternative that it be adjudged to be community property.

Appellee, Lee T. Kennedy, claimed the 252-acre tract under a bequest in the will of his mother, Maggie M. Kennedy, which he alleged was at the time of her death her separate property, and that at the date of trial he owned the same by fee-simple title. He answered the pleadings of appellant, denying that the land was paid for out of the separate funds of appellant, but, if so paid for, that the conveyance was not made in trust for appellant, but as a gift to his mother, Maggie M. Kennedy. He further pleaded in the alternative that the property was the community property of A. B. Kennedy and Maggie M. Kennedy, and that in such event, under the will of his mother, he became the owner in fee simple of an undivided one-half of the land.

The case was tried before the court without a jury, and the court rendered judgment according to the agreement of the parties as to the personal property and all real estate, except the 252 acres, for which the court rendered judgment in favor of appellee, Lee T. Kennedy, subject to appellant's homestead right to 200 acres thereof. From this judgment A. B. Kennedy has appealed.

Appellant's first assignment of error complains at the trial court's failure to make and file his findings of fact and conclusions of law, as requested by appellant; and his propositions thereunder assert that such failure is reversible error, even though no bill of exception was taken, because it deprived appellant of a proper presentation of his appeal. The judgment recites that appellant in open court requested the court to prepare and file findings of fact and conclusions of law.

Appellees present counter propositions to the effect that this assignment cannot be considered, because no bill of exception is to be found in the record, complaining of the failure of the trial court to file conclusions, and, further, because the record contains a full statement of facts; and, it not appearing that appellant was probably prevented from properly presenting his case on appeal by reason of such failure, no reversible error is shown.

The further counter proposition is made that the undisputed evidence shows the 252-acre tract to have been devised to appellee Lee T. Kennedy, by the will of his mother Maggie M. Kennedy, it having been theretofore conveyed to her as grantee, the consideration being paid out of the separate funds of appellant, A. B. Kennedy; and that the law raised the presumption that appellant intended such conveyance as a gift to Maggie M. Kennedy; and that, the trial court having found that the 252 acres was the separate property of Maggie M. Kennedy at the date of her will, such finding necessarily included the finding that appellant's testimony that he did not intend such conveyance to operate as a gift was not true.

We will first examine the question as to whether or not it was necessary for appellant to take a bill of exception to the failure of the trial court to file findings of fact and conclusions of law, as formally requested by appellant.

Appellant has cited in support of his proposition that a bill of exception was not necessary, the cases of Railway Co. v. Bracken, 180 S. W. 285, and Mackey v. Armstrong, 84 Tex. 159, 19 S. W. 463.

In the first case cited it does not affirmatively appear that the question was not presented by a bill of exception, and it does appear that there was no statement of facts in the record. The court did not discuss the question of the necessity for a bill of exception, and we think that it should not be assumed that there was no bill of exception raising the question. The substance of the holding in that case is that, there being no statement of facts in the record, the appellant was prevented from properly presenting its case on appeal under the state of the facts and the issues shown by the record, and constituted reversible error.

In the Mackey Case the question of the failure of the trial judge to file conclusions of fact and law did not seem to be involved.

Appellees rely upon articles 2058 and 2073, Revised Statutes, and several decisions, which will be hereafter cited.

Article 2058 provides as follows:

"Whenever, in the progress of a cause, either party is dissatisfied with any ruling, opinion or other action of the court, he may except thereto at the time the same is made or announced, and at his request time shall be given to embody such exception in a written bill."

Article 2073 provides that the parties to a suit shall be entitled to 30 days after adjournment of court in which to prepare and file a statement of facts and bills of exception, and to further time if granted by the trial judge.

The following authorities are cited by appellees in support of their claim that in virtue of these statutory provisions this court cannot consider the alleged error of the trial court in failing to file conclusions of fact and law, unless the error be presented by bill of exception. Cotulla v. Goggan & Bros., 77 Tex. 32, 13 S. W. 742; Landa v. Heermann, 85 Tex. 1, 19 S. W. 885; Jacobs v. Nussbaum & Scharff, 63 Tex. Civ. App. 520, 133 S. W. 485; Haywood v. Scarborough, 102 S. W. 469; Insurance Co. v. O'Neal, 14 Tex. Civ. App. 516, 38 S. W. 62; Farmers' State Bank v. Farmer, 157 S. W. 285; Dunlap v. Broyles, 141 S. W. 289; Overton v. Colored Knights of Pythias, 173 S. W. 472.

These authorities seem to support the contention of appellees. Some of these cases were decided under the old statute, requiring both bills of exception and conclusions of fact and law to be filed before adjournment of the term; whereas, under the present statute, the judge may file his conclusions at any time within 10 days after adjournment, and the parties are given at least 30 days after adjournment in which to file bills of exception.

In the case of Jacobs v. Nussbaum, 63 Tex. Civ. App. 520, 133 S. W. 485, Chief Justice Pleasants, speaking for the Court of Civil Appeals for the First District, fully discussed the question under the present statutes, and concluded that a bill of exception to the failure of the trial court to file his conclusions is as necessary now as it was under the old law.

In the case of Overton v. Colored Knights of Pythias, 173 S. W. 472, this court held that where there was no bill of exception shown in the record, and where the record failed to disclose that the request for conclusions was called to the attention of the trial court, the matter must be regarded as waived.

We believe the authorities cited sustain the contention that the error claimed must be raised by bill of exception, or at least that it must appear in the record, not merely that the request for findings and conclusions was made, but also that, upon failure of the trial court to comply with the request, the appellant has objected or excepted to such failure. It is clear that this is a matter that may be waived, and the mere request for findings and the subsequent failure of the judge to comply therewith does not present an objection or exception to his omission or failure; and we are of the opinion that the record must disclose, either by formal bill of exception or otherwise, that the appellant has seasonably complained of the trial court's failure or refusal; otherwise the matter may be regarded as waived, or the request withdrawn.

We find nothing in this record to show that appellant has saved any character of exception or objection to the court's omission or refusal to file conclusions, except in his assignments of error, and for this reason we think the assignment should not be considered.

Furthermore, it would seem that under rule 55 for the district courts (142 S. W. xxi), the matter must be presented by bill of exception. This rule provides that—

"Rulings of the court upon applications for continuance, change of venue, and other incidental motions, and upon the admission or rejection of evidence, and upon other proceedings in the case not embraced in the two preceding rules, when sought to be complained of as erroneous, must be presented in a bill of exception, signed by the judge and filed by the clerk, or otherwise made according to the statute, and they will thereby become a part of the record of the cause, and not otherwise." (Italics ours).

The proceedings referred to in the two preceding rules, Nos. 53 and 54, do not relate to...