Opinion
No. 2277.
April 11, 1929. Rehearing Denied May 9, 1929.
Appeal from County Court at Law No. 2, Bexar County; Geo. G. Clifton, Judge.
Action between the Columbia Weighing Machine Company and Martin's Pharmacy No. 2. From the judgment, the former appeals. Affirmed.
Hertzberg Kercheville and Albert C. Buss, all of San Antonio, for appellant.
S. Benton Davies, of San Antonio, for appellee.
This case was tried without a jury. Findings and conclusions by the trial court are not shown by the clerk's transcript. In the statement of facts appears a statement that, "The court found that there had been no fraud in procuring the execution of the contract."
The statement of facts is approved by the trial court as the statute requires, and if it had been filed within the time required by law it might possibly be properly considered as a finding upon the issue of fraud tendered by the answer. But such statement was filed in the trial court long after the time allowed by law for the trial court to file findings and conclusions. Findings and conclusions filed after the time allowed by article 2247, R.S., are nullities, constitute no part of the record, and cannot be considered for any purpose. See cases cited in Taliaferro v. Saer (Tex.Civ.App.) 294 S.W. 653.
In the absence of findings it must be assumed all issues of fact raised by the pleadings and evidence were found by the trial court in such manner as will support the judgment.
Upon the issue of fraud inducing the execution of the contract raised by the pleadings and evidence, the case differs in no material respect from Columbia Weighing Machine Co. v. McElroy's Drug Store (Tex.Civ.App.) 299 S.W. 351, the opinion being by Chief Justice Fly, where the present appellant sued upon a contract companion to the one here sued upon.
Upon the authority of that case the judgment in the present appeal should be and is affirmed.