Mueller v. Spencer

LANE, J. This suit was originally brought in the justice court by James G. Spencer, hereinafter called plaintiff . or appellee, against John L. Mueller, hereinafter called defendant or appellant, to recover the sum of $125 for damages to one cow belonging to him (Spencer) by reason of the alleged negligence of appellant. The plaintiff’s cause of action as presented in the justice court was that, while he was leading his cow in and along one of the streets of the city of Houston, the defendant, while driving an automobile at a very high speed, wantonly and negligently ran said automobile against his cow, so injuring her as to render her worthless, to his damage in the sum of 3125. ' The defendant answered by general denial. In the justice court judgment was rendered in favor of the plaintiff, Spencer, for the sum of $57. From this judgment defendant, Mueller, appealed to the county court. After the cause had been transferred to the county court by appeal the defendant amended his answer and alleged that the plaintiff was [guilty of 'contributory negligence. The cause was submitted to the court below without a jury, and judgment was rendered in favor of the plaintiff against defendant for the sum of $92. From this judgment this appeal is taken, and appellant insists that this court should reverse the judgment and remand the cause for this, that the trial court failed to file his separate findings of fact and conclusions of law as requested by appellant. It is the general rule that where the case is tried before the court without a jury, and a request is made for a finding of facts and conclusions of law, such findings and conclusions must be filed within 10 days after the adjournment of court and that the failure of the court to so file such findings and conclusions is reversible error. But it appears from the court’s qualifications to appellant’s (bill of exception No. 1, which .was accepted and filed by appellant, that counsel for appellant did in proper time orally request the court to file his findings of fact and conclusions of law, and at the same time told the court that he would prepare and submit [224] to tlie court for approval such findings and conclusions, and that he failed to do so, and that the court, depending upon counsel’s promise to prepare and submit such findings and conclusions, and not having his attention again called to the matter by any one, overlooked the matter until too late to file same. Under these circumstances, we do not think appellant is entitled to have the judgment against him reversed solely upon the ground that the trial court failed to file such findings and conclusions. Appellant has heretofore filed his motion to strike out the statement of facts prepared and filed by the trial court. In view of the fact that the only question presented by the assignments of appellant have been disposed of without the resort to a consideration of the statement of facts, we deem it unnecessary to discuss this motion, and therefore overrule same without further comment. For the reasons pointed out the judgment is affirmed. Affirmed.