On Motion for Rehearing.
SMITH, J.It is universally held that the provision in article 2247, R. S. 1925, requiring a trial judge to file his findings of fact and conclusions of law within ten days aftet adjournment of the term of court at which a case is tried, is mandatory.
It is likewise uniformly held that such findings and conclusions filed after the expiration of the ten-day period are a nullity, cannot properly be placed.in the record, and cannot be considered in determining the appeal. Flores v. Bank (Tex. Civ. App.) 266 S. W. 542, 543; Maverick v. Burney (Tex. Civ. App.) 30 S. W. 566; King v. Baldwin (Tex. Civ. App.) 37 S. W. 971; Velasco Fish & Oyster Co. v. Texas Co. (Tex. Civ. App.) 148 S. W. 1184; Bliss v. School Board (Tex. Civ. App.) 173 S. W. 1176; International & G. N. R. Co. v. Mudd (Tex. Civ. App.) 179 S. W. 686; Emery v. Barfield (Tex. Civ. App.) 156 S. W. 311; Standard Paint & Wall Paper Co. v. Rowan (Tex. Civ. App.) 158 S. W. 251; Dennis v. Kendrick (Tex. Civ. App.) 163 S. W. 693; Owen v. Smith (Tex. Civ. App.) 203 S. W. 1171; Houston Oil Co. of Texas v. Lumber Co. (Tex. Civ. App.) 162 S. W. 1183; Averill v. Wierhauser (Tex. Civ. App.) 175 S. W. 794; Terrell v. Elevator Co. (Tex. Civ. App.) 248 S. W. 467; Sands v. Lemmerhirt (Tex. Civ. App.) 262 S. W. 125; First Nat. Bank v. Zundelowitz (Tex. Civ. App.) 168 S. W. 40; Garrow v. Ry. (Tex. Civ. App.) 273 S. W. 277; Robinson v. Galloway (Tex. Civ. App.) 278 S. W. 282; Columbia Weighing Machine Co. v. Pharmacy (Tex. Civ. App.) 16 S.W.(2d) 982; Taliaferro v. Saer (Tex. Civ. App.) 294 S. W. 653.
When issues of fact are raised, the failure of the trial judge to thus timely file his findings and conclusions in response .to proper request requires reversal of the judgment on appeal. Wandry v. Williams, 103 Tex. 91, 124 S. W. 85; Lawther Grain Co. v. Winniford (Tex. Com. App.) 249 S. W. 195; Beavers v. Pilgrims (Tex. Civ. App.) 204 S. W. 718; Lester v. Oldham (Tex. Civ. App.) 208 S. W. 575; Stryker v. Van Velzer (Tex. Civ. App.) 212 S. W. 674; Marvin v. Kennison (Tex. Civ. App.) 230 S. W. 831.
It is true that an exception to this rule is made in cases where a statement of facts accompanies the record, and it is made to appear from this statement of facts that no injury has resulted from the failure of the trial judge to file his findings and conclusions. Umschied v. Scholz, 84 Tex. 265, 16 S. W. 1065; Flores v. Bank (Tex. Civ. App.) 266 S. W. 542. That exception is not available in this case, however, as no statement of facts accompanies the record.
It is obvious that findings of facts recited in the judgment appealed from, if those findings resolve all the material issues made in the case, would meet the requirements of the law and obviate the necessity of filing separate findings. But this exception is likewise unavailable in this case, for no findings of fact, as contemplated in law, are included in the judgment, in which it is simply recited that “the law and the facts are with the defendants,” that the defendants are “entitled to recover on their cross-action,” and that a certain deed in controversy “is, and from its execution has been null, void and of no ’force and effect.” These are but general conclusions requisite to any judgment in a suit of this character, and do not in any sense meet the requirement that the trial judge prepare and file “his findings of fact and conclusions of law.” The pleadings in this case raise numerous questions both of fact and of law, including issues of fraud, of homestead, of estoppel. This variety and multiplicity of issues involved in the case are emphasized by the fact that, when the trial judge tardily prepared and filed his findings of fact and conclusions of law he made specific findings upon ten distinct issues of fact, and two of law. It is perfectly obvious, then, that appellant was entitled to insist upon his demand for separate findings and 'conclusions, in order to enable him to attack them upon appeal as was contemplated in the statute.
It is true that a statement of facts might have obviated this necessity for findings and conclusions, but there is no such statement of facts in the record. If appellee intended or desired to neutralize the error complained' of through the presence of a statement- of facts, it was his duty, and was clearly within his privilege, to prepare, file, and present such statement of facts to this court; but he did not do so, and therefore cannot assert that the error was harmless. Appellant was certainly under no duty to bring up a statement of facts, and clearly he had the right to stand upon his demand for findings and conclusions. Flores v. Bank (Tex. Civ. App.) 266 S. W. 542.
FLY, C. J., concurs.