On Motion for Rehearing.
BOBBITT, Justice.We have given careful consideration to appellant’s motion for rehearing in this cause, and find no reason to change the conclusion reached by the majority in our original opinion. The attorney for appellant, who filed the motion for rehearing, frankly states: “Appellant’s present attorney took no part in the trial of this case.” The record shows that appellant’s present attorney is the fourth attorney, or firm of attorneys, who have handled this case in its varied experiences and phases. It is obvious that appellant’s present attorney is not fully acquainted with the facts and proceedings shown by the record before us. He had no part in the proceedings prior to the appeal, and of course did not have any experience with or responsibility for the different questions or problems as they developed in the lower court. For instance, appellant’s present counsel states in the motion before us: “The testimony introduced at the trial on the merits, therefore, was ‘only the evidence of appellee.’ This one-sided testimony has apparently won the sympathy of the majority in the Court of Civil Appeals, to such extent that the majority opinion herein has affirmed said find*356ing by the Special Judge in the teeth of the record as herein set forth.”
The plain facts of the record before us show that the trial of the cause on the merits was in progress several days and numerous witnesses testified for both appellant and appellee, including the appellant, his two sons, and the chief deputy sheriff of Bexar county, all on behalf of appellant. There is no suggestion or complaint in the record that appellant had any other or additional testimony or evidence to offer or that any further time was needed or desired by appellant for any purpose at the trial on the merits. The case was fully developed. The issues of fact were properly and fairly submitted to the jury, and its verdict is clear and specific. There is no suggestion of any irregularity or lack of fairness on the part' of the trial court or jury, as shown by the record. No complaint in any such respect is made by appellant. He demanded'a jury trial; got it, and makes no complaint of its fairness or regularity. The statements of appellant’s present attorney, therefore, in respect to the trial on the merits are not supported by the record, and 'doubtless were made without knowledge of the facts.
Likewise, the suggestion made by appellant in the motion for rehearing, that the trial judge was partial; that he “took sides” in the controversy is not justified by any fact or suggestion in the record before us, and the able counsel who tried the case in the court below and exhaustively briefed the questions on this appeal, neither made nor suggested the existence of unfairness or partiality on the part of the trial judge in any step or phase of the trial.
Appellant now contends, in effect, that the issue raised by him in his own motion asking the trial court to enter the purported pronouncement of dismissal of the cause by Judge Minor, in the form of a judgment nunc pro tunc, is.not an issue of fact; that the finding of fact by the trial court, and shown by the record to have been based upon the evidence offered on the hearing of numerous witnesses, who gave extensive and conflicting testimony relating to the facts and circumstances, was not a “finding of fact” but an “erroneous conclusion of law.” Appellant then proceeds to discuss at length the conflicting testimony and evidence relating to what, in fact, transpired in Judge Minor’s court, when appellant’s motion was called for trial. All of these matters were duly and fully heard by the trial court, at the proper time and place, and upon the motion filed by appellant when the facts were completely developed and decided against the contention then and there made by appellant, when he presented numerous witnesses to support his contention, and when appellee also presented numerous witnesses and evidence to the contrary. We find that the record reveals evidence to sustain the finding of fact made by the trial judge that -the case was not dismissed by Judge Minor, and we respect that finding.
The conclusion reached and announced in this cause in our original opinion, and based upon the record before us, is not in conflict with the holding of the Commission of Appeals in the case of Love v. State Bank & Trust Co., 90 S.W.(2d) 819, 821. The facts are different. The record in that case shows that the trial judge had pronounced his judgment. The judgment was written out, duly signed by the judge, duly entered in the minutes of the court, and the term of the court duly closed. The judicial act was completed, and the undisputed written record of the court plainly showed each and every step had been taken to remove any doubt as to what had, in fact, transpired. The complaining party failed or refused to avail himself of his rights and duty through a proper bill of review, in accordance with law, to reopen the case and secure the appropriate relief, if the facts and law so justified.
In this case we are met, at the threshold, with a dispute over the fact as to whether the trial judge pronounced any judgment at all. The record affirmatively shows that no judgment, giving effect to such alleged pronouncement, was signed by the judge; no such judgment was, of course, entered. The minutes of the court show no official act concerning or disposition of the case. It is true that the unofficial notes and mem-oranda of the trial judge and the clerk, the application for reinstatement, notice, etc., filed and issued concerning the matter are all evidence, but only evidence of what the trial judge intended to do, and in fact did, or did not do, about the dismissal of a case that he was not asked to dismiss, but which he had been asked to try; and which no one concerned can give any good reason for his having dismissed. Then, when appellant comes into the same court, but before another trial judge, and asks that such other judge enter a judgment showing that the cause of action had been, without request *357and without reason, dismissed, such other judge properly required appellant to make proof of his alleged fact of dismissal. Appellant assumed the burden of proving the allegations of his motion for judgment. It was proper, if the court or either party desired, to have a jury pass on the issues raised by the appellant’s motion. The jury was waived, and numerous witnesses testified, pro and con; documentary evidence was introduced, and the “trier of the facts” found the facts against appellant; that Judge Minor did not dismiss the suit. Appellant then demanded a jury to try the case on the merits. Several days were consumed in that trial, and the jury found the facts against appellant. He appealed to this court from the adverse judgment of the trial court on his motion for judgment nunc pro tunc, but makes no complaint and alleges no error of any kind against the fairness and legality of the trial on the merits.
It is perfectly apparent, from the record before us, that justice has been done and is clearly reflected in the judgment entered between the parties in the court below. It is also apparent that the contentions and efforts of appellant to strike down the judgment which was reached after a fair and impartial trial on the true facts and conduct of the parties, are, at best, dependent upon a construction of the law and rules of procedure which must, under the statement of the record, result in a miscarriage of justice which is indefensible, under any theory applicable to the facts of the case. This court, and all other courts, are properly concerned with the effects and results of their judgments and conclusions. Our Supreme Court, in adopting the opinion of Judge German in the Love Case, supra, holds:
“The fact that this cause had remained upon the docket of the court for nearly ten years, with no effort to bring it to trial, so far as disclosed by the record, precludes all implications of hardship because of the conclusion announced by the Court of Civil Appeals and here approved.”
The record before us in the instant case shows that appellee has been diligent in seeking a trial of the cause, and that the case has been, in fact, fairly tried, and a just and unchallenged judgment, on the merits, duly entered. Appellant now asks that the judgment of the trial court be reversed and' rendered, and the cause dismissed on his complaints against the action of the trial court on his motion for judgment nunc pro tunc, and which will, according to the record, result in the case being barred by limitation.
For the reasons stated herein and in our original opinion, appellant’s motion for rej hearing is overruled.
MURRAY, J., dissents. ⅛