Elam v. Tubre

LAWHON, J. Appellant, W. E. Elam, brought suit in the trial court to recover of C. M. Tubre and T. E. Danziger the value of certain services he alleged he performed for them in building or repairing a house on lot 8, block 20, of the Cartwright addition to the city of Beaumont. He also sought to foreclose a lien on this property against the defendants Tubre and Dan-ziger and Home Building & Loan Company. The case was tried by the court, and judgment was rendered that plaintiff take nothing as against the defendants. Plaintiff filed motion for new trial, which was overruled on December 19, 1931, and he excepted and gave notice of appeal. On the same date he requested the court to file findings of fact and conclusions of law. Appeal was perfected by filing an affidavit of inability to pay costs in lieu of an appeal bond. • A transcript has been filed in this court, but it was not accompanied by a statement of facts. Appellant seeks to have the judgment of the trial court reversed solely on the ground that the trial judge did not file findings of fact and conclusions of law, as requested. The transcript does not show that appellant called to the attention of the trial court his failure to file findings of fact and conclusions of law, as required by article 2247, Revised Civil Statutes, as amended by the Forty-Second Legislature, 1931, c. 76 (Vernon’s Ann. Civ. St. art. 2247) which reads as follows: “When demand is made therefor, the Judge of a District or County Court thirty days before the time for filing transcript in the cause shall prepare his findings of fact and conclusions of law in any case tried before the Court. If he shall fail so to prepare them, the party so demanding, in order to complain of the failure, shall, in writing, within five days after such period, call the omission to the attention of the Judge, whereupon the period for due preparation and filing shall be automatically extended for five days after such notification.” Appellant cannot complain of the action of the trial court without showing that he complied with this article of the statutes. The cases cited in appellant’s brief were decided before article 2247 was amended. No other complaint being made in the brief, to the judgment, it is affirmed.