
    GAAL v. EDEN.
    (No. 1518.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 1, 1923.
    Rehearing Denied Nov. 22, 1923.)
    1. Appeal and .error c&wkey;!0l0(l)'—Trial court’s findings conclusive on appeal.
    The Court of Civil Appeals is concluded by the judgment of the trial court on the facts, if there is sufficient evidence to sustain the material facts at issue.
    On Behearing.
    2. Appeal and! error <&wkey;93l (3) — Trial court presumed to have found facts supporting judgment In absence of findings.
    In a case tried without a jury, the appel-' late court, in the absence of findings of fact by the trial court or request by appellant that such findings be filed, must presume that all material issues of fact raised by the pleadings and evidence were found in such manner as to support the judgment.
    3. Appeal and error <&wkey;IOIO(l) — Bills and notes <&wkey;537(4)—Evidence held to raise issue of fact as' to whether note was procured by duress; trial court’s finding on issue of fact conclusive.
    In an action on a note which defendant claimed to have signed under duress, evidence held to raise an issue of fact as to whether defendant was forced to sign the note by payee’s threats to prosecute his son-in-law, making the trial court’s finding thereon conclusive on appeal.
    cgz^For other cases see same topic and KEI-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from County Court, at Law, El Paso County; J. M. Deaver, Judge.
    
      Suit by J. H. Eden against W. H. Eden and I. G. Gaal. Judgment for plaintiff, and defendant Gaal appeals.
    Affirmed.
    J. U. Sweeney and R. M. Reed, both of El Paso, for appellant.
    ' Wallace & Cameron, of El Paso, for appel-lee.
   WALTHAI/L, J.

J. H. Eden brought this suit against W. H. Eden and I. G. Gaal to recover on a promissory note for tbe sum of $225, interest and attorney’s fees provided for in tbe note.

Defendants Eden and Gaal pleaded that plaintiff J. H. Eden is tbe father of W. H. Eden,, and that Gaal is tbe fatber-in-law of W. H. Eden; that at and prior to tbe time of tbe execution of said note plaintiff threatened to have W. H. Eden arrested and sent to tbe penitentiary for theft of money, unless defendants would execute said note. Gaal, in bis own behalf, alleged that be signed tbe said note for fear plaintiff would try to carry out bis said threat and thereby bring disgrace upon himself and family, and that by reason of said threat and fear be signed said note under duress, and that said note was without consideration, against public policy, and is void.

The case was tried before tbe court without a jury, and judgment was rendered for plaintiff and against each of tbe defendants, from which judgment Gaal alone prosecutes this appeal.

Tbe court did not make up and file findings of fact and conclusions of law, but in tbe judgment recites that “tbe court finds that tbe defendants are justly indebted to the plaintiff,” in tbe amount of tbe note, interest, and attorney fees, and so rendered judgment.

This court is concluded by tbe judgment of tbe trial court on tbe facts if there is sufficient evidence to sustain tbe material facts at issue. Tbe execution and delivery of tbe note is admitted, and tbe only contention made by tbe defense is tbe issue of duress by reason of tbe alleged threats by appellee to prosecute the defendant, W. H. Eden, for theft of money ■ unless tbe note was given. Tbe court beard tbe evidence, and rendered judgment for the plaintiff. Appellant’s evidence is to the effect that tbe alleged threats were in fact made, and tbe evidence of tbe appellee is to tbe effect that no threats as alleged were in fact made. Tbe court concluded tbe fact in favor of appellee.

Appellant presents several propositions, but they are based upon the assumed fact that tbe threats were made as alleged.

Finding no reversible error, tbe ease is affirmed.

On Rehearing.

HIGGJNS, J.

Appellant in bis motion for rehearing questions the correctness of this court’s action in assuming that tbe trial court found against him upon tbe issue of whether tbe alleged threats were in fact made. It is tbe well-accepted rule that, in a case tried without a jury, tbe appellate court, in tbe absence of findings of fact by tbe tr(al court, must assume that all material issues of fact raised by tbe pleading and evidence were found by tbe trial court in such manner as to support the judgment. In support of this statement of tbe rule see long list of authorities upon the subject in 1 Micbie Digest, 753.

If appellant desired to avoid being bound by tbe assumption that tbe trial court found against him upon tbe issue of whether tbe alleged threats were made, be should have demanded of tbe trial court tbe filing of its finding upon such issue. Read v. Brewer, 90 Tex. 144, 37 S. W. 418.

Having failed to obtain tbe trial court’s finding upon this issue, this court cannot disregard tbe «well-settled presumption that obtains in support of tbe judgment. It is also a well-settled rule that .upon all is-, sues of fact sufficiently supported by competent evidence tbe appellate court cannot set aside tbe findings of tbe jury, or of tbe court in cases tried without a jury, upon such issues. It is true tbe appellant and three other witnesses testified that J. H. Eden made the threats as alleged, but J. H. Eden in bis testimony unequivocally denied making tbe same. This testimony of J. H. Eden raised a clear issue of fact. Tbe trial court beard tbe evidence, and bis finding upon tbe issue controls.

The judgment rendered against appellant may not appeal to this court, but it cannot set aside the judgment of tbe lower court without disregarding well-settled rules of law.

Tbe motion for rehearing is overruled.  