On Motion for Rehearing.
Appellant’s counsel have filed a vigorous motion for rehearing, urging with commendable zeal and ability that we were in error in the rulings announced in our original opinion. In support of his contentions that the trial court erred in denying him a jury trial, appellant cites Wm. D. Cleveland & Sons v. Smith, 102 Tex. 490, 119 S.W. 843; Becker v. Becker, Tex.Civ.App., 218 S.W. 542; Mullaly v. Goggan, Tex.Civ.App., 25 S.W. 666; McFarland v. Martin & Moodie, Tex.Civ.App., 86 S.W. 639; Couger v. Allen, Tex.Civ.App., 25 S.W.2d 666; Panhandle & S. F. Ry. Co. v. Lawless, Tex.Civ.App., 94 S.W.2d 213; and an excerpt from 26 Tex.Jur. 581. Appellant contends that it is no answer to his complaint of having been denied a jury trial to say that the trial court would have been obligated to instruct a verdict even had there been a jury, and the opinion in Cleveland & Sons v. Smith tends to support appellant’s contention. But even that opinion seems to recognize that there could be cases where the error would be harmless. Becker v. Becker does not appear to us to be in point for or against appellant’s contentions. Harmless error is not discussed in Mullaly v. Goggan or in McFarland v. Martin & Moodie. And the ruling of the court in the latter case appears to have been based entirely upon another ground. In Couger v. Allen the evidence was conflicting, and so should have been submitted to the jury. In Panhandle & S. F. R. Co. v. Lawless harmless error was not discussed. Disposition of the case was made upon the proposition that once the case had been placed upon the jury docket, it could not be withdrawn from the jury except upon waiver of all parties.
The following cases appear to us to support our holding. Niblett v. Shelton, 28 Tex. 548; Gibson v. Singer Sewing Ma*294chine Co., Tex.Civ.App., 147 S.W. 285; Buttrill v. Occidental Life Ins. Co., Tex.Civ.App., 45 S.W.2d 636; Slay v. Davidson, Tex.Civ.App., 88 S.W.2d 649. In Gibson v. Singer Sewing Machine Co. [147 S.W. 287] it is said:
“Under the allegations and the proof, the court would have been justified in instructing a jury, had there been one, to have returned a verdict for appellee. The allegations would not have justified the proof of any other facts than those in evidence, and the case is • brought within the exception recognized in Cleveland [& Sons] v. Smith, 102 Tex. 490, 119 S.W. 843, in which it is said: We think it clear that, if such an error can ever be cured by such a reason, it would only be when it is clear beyond peradventure that there were no facts to he found from evidence.’ ”
Appellant contends that the liability of appellee for taking possession of the mortgaged property presented an issue for the jury. It is our opinion that there was no proof upon which a jury could have found the amount of damages for such wrongful taking of possession, if any there was.
Upon further consideration of the question, we are led to believe, and so hold, that appellant failed to make such compliance with the applicable rules of procedure as to enable him to complain of the failure to grant him a jury trial. The case was set for trial on the non-jury docket on September 8, 1942. The demand for a jury and the payment of the required fee was made on September 2nd. Rule No. 216, Texas Rules of Civil Procedure, requires that the jury fee be paid on or before appearance day, or, if thereafter, not less than ten days in advance of the trial of the case on the non-jury docket. On September 8th the court postponed the trial until September 18th. While it has been held that a late payment of the jury fee will not operate to deprive a party of the right to a jury if it does not operate as a postponement of the trial and if it does not interfere with the handling of other business of the court, we do not feel that appellant has brought himself within the exception to the rule. It is commonly known that on the first Monday of each month the civil district courts of Tarrant County make up the settings of jury cases for trial during the following month. The case had already been set for trial on the non-jury docket when the jury fee was paid. The jury fee was paid within less than ten days of such trial date. The case could not then have been regularly set for a jury trial before the month of October. It t is shown that no jury was available when the casé was tried on September 18th. The presumptions are in favor of the validity of the trial court’s rulings unless otherwise shown on appeal. Appellant did not comply with Rule 216, and we are unable to find from the record before us an abuse of discretion on the part of the trial court in declining to make an exception to the rule.
We have again carefully reviewed the action of the trial court in refusing a continuance, and are not able to find error with respect thereto.
Appellant has also filed in this court an application in which he seeks relief under the provisions of the Soldiers’ and Sailors’ Civil Relief Act Amendments of 1942, 50 U.S.C.A.Appendix § 501 note 513 et seq., which became effective after the rendition of the judgment in the trial court.
Our jurisdiction in this case is appellate only. Our authority is only to review what was done in the trial court. We are not permitted to hear the evidence which would be required to determine whether appellant is entitled to relief under the 1942 Amendments. Nor could we appoint a receiver or a custodian of the property, or order appellant to make payments on the loan. As we view the matter, the 1942 Amendments were not before the trial court, nor are they before us on this appeal. This is not the court in which such relief would have to be sought.
The motion for rehearing is overruled. Being without jurisdiction of the application for relief under the 1942 Amendments, that application is dismissed without prejudice to appellant’s rights, if any, to seek such relief in a court of competent jurisdiction.