
    RILEY v. AUSTIN et al.
    (No. 369-3364.)
    
    (Commission of Appeals of Texas, Section A.
    Dec. 20, 1922.)
    (.Appeal and error <&wkey;>l071(l) — Failure to file findings of fact and conclusions of law on request did not in itself entitle appellant to reversal.
    The trial court’s failure to file findings of fact and conclusions of law within 10 days after the adjournment of the term on request of appellant, as required by the statute, did not in itself entitle appellant to a reversal of the judgment, where the record contained a statement of facts enabling the Court of Civil Appeals to review the alleged errors, since the failure of the court to comply with the statute may not have prejudiced appellant.
    2. Appeal and error &wkey;jl07l(l) — Failure to file findings and conclusions on appellant’s request did not prejudice him, where record contained statement of facts.
    Trial court’s failure to file findings of fact and conclusions of law on appellant’s request, as required by the statute, did not of itself require a reversal of the judgment, where the record contained a statement of the facts enabling the Court of Civil Appeals to review the errors alleged, though appellant did not concur in such statement of facts under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 2068, 2069.
    <S=^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Court of Civil Appeals of Ninth Supreme Judicial District.
    Application by J. P. Riley to probate the will of A. L. Austin, deceased, contested by Vinie Austin and others. Judgment for contestants on appeal from the county court, and proponent appealed to the Court of Civil Appeals, which certified questions to the Supreme Court.
    Questions answered.
    R. A. Powell, of Montgomery, and A. L. Kayser and W. N. Poster, both of Conroe, for appellant.
    Dean & Humphrey, of Huntsville, and P. McDonald, of Montgomery, for appellees.
    
      
      Rehearing denied January 24, 1923.
    
   RANDOLPH, J.

In the above case, the Court of Civil Appeals for the Ninth District have filed in the Supreme Court certi■fied questions, together with a statement of the facts in the case, and same have been referred to this section of the Commission for consideration.

As the statement is quite lengthy, we will not set it out in full, but will make a brief statement of such portions as are necessary to explain our rulings and answers to same.

The appellant filed in the county court of Montgomery county his application to probate a certain instrument as the will of A. L. Austin, deceased. Appellees, contesting the probate, alleged that the instrument tendered for probate was not in the handwriting of, and neither was it signed by, the alleged testator, and that it was a forgery.

The county court entered an order permitting the probate of said will, but, on appeal and trial de novo in the district court of Montgomery county, before the judge without the intervention of a jury, judgment was rendered for contestants, appellees, as set out in the judgment, on the grounds that the instrument tendered as the will of the alleged testator was not in his handwriting, was not signed by him, and was a forgery. Appellant, in his amended motion for new trial, attacked the judgment thus rendered upon the very grounds set out therein by the court as his reasons for rendering same, and alleged in said motion that the trial court erred in so holding.' It appears that when the trial court overruled this amended motion for new trial, the appellant in due time requested the trial judge to file his findings of fact and conclusions of law. This the trial court failed to do, and appellant thereupon reserved his bill of exceptions to such failure of the trial court. It further appears that the attorneys for the appellees prepared a statement of facts which they tendered to appellant’s attorneys and they declined to approve same. Thereupon the court prepared, signed, and filed with the clerk of his court a statement of facts in the ease, and it was then sent up and filed with the transcript in the Court of Civil Appeals within the time allowed by law for same to be filed in that court. The appellant, appealing, assigned error covering the failure of the trial court to file such findings of fact and conclusions of law.

The sixth and seventh grounds of appellant’s motion for new trial filed in the trial court are as follows:

“Sixth Ground. The court erred to the prejudice of contestee in entering and" rendering judgment against contestee in this cause and in finding as a predicate for such judgment that the will sought to be probated by proponent (contestee) was, and is, a forgery, and is not wholly in the handwriting of A. L. Austin and signed by him, because said judgment and finding are manifestly against the overwhelming weight and preponderance of the testimony and suggest that the court misunderstood and misapplied the testimony before him.
“Seventh Ground. The court erred to the manifest prejudice of the contestee in rendering judgment for contestants, because said judgment is necessarily based upon a finding that the will offered for probate by contestee is a forgery and is not and was not wholly written by A. L. Austin and signed by him, and because such finding is manifestly against the overwhelming weight and preponderance of the testimony, and suggests that the court was confused as to the evidence before him, and failed to understand and properly apply the same, in this. * * * ”

Upon this state of the record the Court of Civil Appeals filed the following duly certified questions:

“Eirst Question. Was appellant entitled, as a matter of law, to have the judgment of the trial court in this cause reversed by this court and the cause remanded, as appellant sought to do, because of the trial court’s failure to prepare and file, within the time provided and required by the statute, his findings of fact and conclusions of daw?
“Second Question. If the first question be answered in the negative, then was this court warranted in concluding and holding, as it did, substantially, that from the record in this ease ''it was not made to appear that the failure of the trial judge to duly file his findings of fact and conclusions of law prevented appellant from making a proper presentation of the questions involved on this appeal, and that, therefore, such failure did not operate to the prejudice of appellant?”

In our opinion, when the Legislature enacted the requirement that the district judge should, at the request of either party, prepai'e and file his findings of fact and conclusions of law within 10 days after the adjournment of the term at which a cause was tried in his court, it was not their intention, on the failure of such judge so to do, to require an automatic reversal of the case on appeal upon such failure being shown to the Court of Civil Appeals. We think that where it appears from the record that a party has not been injured by such failure to act on the part of the trial judge within the time prescribed, and where every contention made by such party has been preserved in the record, he is not entitled to have the case reversed on the bare error assigned.

The appellant’s motion for new trial presented as error the very grounds set out in the judgment as the basis for that judgment and a statement of facts preserved the evidence so that, upon appropriate assignments, the alleged errors could have been reviewed by the Court of Civil Appeals. However, the appellant contends that he in no way made himself a party to the preparation and filing of the statement of facts, and hence could not be precluded, by the presence of a statement of facts in the record not concurred in by him, from insisting on the alleged error of the trial court in the matter of his failure to file such findings and conclusions.

It is a novel proposition that a party to a suit, by failing or refusing to agree to a statement of facts, can thus defeat the very purpose of the statute authorizing the trial judge to prepare and file such statement, and one that we cannot concur in. Article 2069, Vernon’s Civil Statutes, provides that when the parties to a suit do not agree to a statement of facts, prepared as required in the preceding article 2068, the trial judge from his own knowledge, with the aid of statements furnished him by the parties, shall prepare, sign, and file such statement with, the cleric of his court. Such statement of facts so prepared is by law made the statement of facts which the appellate court shall consider in reviewing the case.

In the case of Ward v. Scarborough (Tex. Com. App.) 236 S. W. 444, it is held that either party has a right to perfect the record by the preparation and filing of a statement of facts to make it show the facts essential to a full and complete consideration of the issues.

In the case of Wandry v. Williams, 103 Tex. 93, 124 S. W. 85, cited 'by appellant, there was no statement of facts filed, and the pleadings presented issues that eould be solved only by the aid of a statement of facts or of findings of fact and conclusions of law by the court. Hence the failure to file such findings and conclusions appeared, affirmatively, to be error.

But we think the questions here presented are definitely determined in the ease of Barfield et al. v. Emery et al., 107 Tex. 306, 177 S. W. 952. In that case the Supreme Court held:

“An answer having been filed by the defendants to the petition for writ of error, we are enabled to decide the case. '
“It is one in which the honorable Court of Civil Appeals for the Second District has reversed the- judgment of the trial court there rendered in favor of the plaintiif m error because of the failure of the trial court to file his findings of fact and conclusions of law upon the motion of the defendants in error, within 10 days after the adjournment of the term. A bill of exception contains an explanation of the trial judge of his omission to file his con-' elusions within the statutory period, due, as stated by him, to the fact that his home was under quarantine during the period necessary for their preparation; this explanation, however, being controverted by opposing affidavits. Although the conclusions of the trial judge were not duly filed, it appears that statement of facts was duly prepared and filed and accompanied the record on the appeal.
“We agree with the view expressed in the dissenting opinion of Chief Justice Conner that it does not appear that the omission of the trial judge to duly file his conclusions prevented a proper presentation of the questions involved in the appeal, or that it could have operated to the prejudice of the appellants in that court. We are of opinion therefore that it did not in itself warrant a reversal of the judgment.
“Since it appears that the judgment was reversed upon this ground, in reversing the judgment of the Court of Civil Appeals, the case is remanded to that court for further consideration.”

Justice Phillips, it is true, says that an extended opinion will later be filed, and no such extended opinion has been filed. As the opinion is, in its present form, conclusive in the reasons given, as well as the disposition of the questions considered, it is very-probable that the Supreme Court came to the conclusion that no additional opinion was necessary.

We therefore recommend that question No. 1 be answered: That the failure of the trial court to file his findings of fact and conclusions of law did not entitle appellant as a matter of law to have the judgment of the trial court reversed and the cause remanded by the Court of Civil Appeals. And, necessarily, question No. 2 .must be answered: The Court of Civil Appeals was warranted in holding, from the record in this case, that it was not made to appear that the failure of the trial judge to file his findings and conclusions within the 10 days, prevented appellant from making a proper presentation of the questions involved in his appeal, and that such'failure of the trial judge to so file same did not operate to the prejudice of appellant. -

CURETON, C. J.

The opinion of the Commission of Appeals answering certified questions is adopted, and ordered certified to the Court of Civil Appeals.  