On Motion for Rehearing
Appellants have filed a lengthy motion for rehearing, in which they contend that this court committed numerous errors in its original opinion. Since we believe that a proper disposition was made of the case, we deem it necessary to discuss only the complaint raised by appellants of our holding in respect to the argument of opposing counsel, and in doing so we deem it advisable to set out more fully the facts as revealed by the record in reference thereto.
*262The 'following day after the return of the verdict of the jury appellants presented to the court their hill of exception, in which they set out “that the Honorable Claude Segrest, one of the attorneys for plaintiff, in his opening argument to the jury, criticized the defendant and intervenors and their attorneys because of their failure to produce as a witness the attorney who represented the parties in the settlement, and their failure to prove by him that the monies received in the settlement were not divided in four parcels among the parties at the time the settlement was effected, and for not proving by him that the defendant Bertha Tucker did not at said time receive $400.00 of the amount paid, it being shown by the record that said party was the attorney for the plaintiff in this cause in said transaction, and was employed by him and had been his attorney prior thereto in the presentation of a claim on behalf of the plaintiff against said party, it being further shown by the evidence that the settlement to which said argument related resulted 'from negotiations between the plaintiff and his attorney and the party who paid the money or his attorneys in a claim presented by the plaintiff against said party for the intervenors, they being minors at said time, and said negotiations leading up to said settlement having occurred prior to the time the intervenors’ disabilities of minority were removed; to which action and conduct on the part of plaintiff’s counsel in said argument the defendants and intervenors, in open court, excepted,' and requested the court to instruct the jury not to consider the same, which exception and request were overruled by the court, to which action of the court the defendant and intervenors then and there in open court excepted; and the defendant and intervenors here and now prepare, file and submit to the court this their bill of exception No. 1 and request that the same be examined, approved and ordered filed by the court as a part of the record in this cause.”
The bill of exception was "not acted on until the court overruled appellants’ amended motion for a new trial. Appellants, in said amended motion for new trial, assigned as error the argument of counsel and sought a new trial as the result thereof. The court heard evidence upon this particular assignment of error. One of appellants’ counsel testified, and he had the opposing counsel whose argument is complained of sworn and placed upon the stand. There is a sharp conflict in their testimony as to whether or not any objection was made, and there is some discrepancy in their testimony as to just what was said by counsel in his argument. Appellants’ counsel testified that he objected to the argument and the court overruled his objection, and that he requested the court to instruct the jury not to consider the same, which was by the court refused. Appel-lee’s counsel testified that no objection was made to the argument complained of. At the conclusion of the testimony the court overruled the amended motion for new trial. The record reveals no findings of fact or conclusions of law nor any request therefor in respect to the hearing and overruling of said motion.
Under such state of facts, we must presume that the court impliedly found that no obj ection was made to the argument and no request was made that the jury be instructed not to consider the same. But the record clearly indicates that the court did find that no objection was made to the argument complained of and that no request was made of the court to instruct the jury not to consider it, by the following proceedings which took place in open court at the conclusion of the hearing upon said amended motion:
“The Court: I will overrule the motion.
“Mr. Dunnam: Note the exception.
“The Court: In connection with the testimony of Mr. Segrest and Mr. Dunnam, and in connection with the motion filed, I would like the record to show—
“Mr. Dunnam: I obj ect to the court testifying. He has already overruled the motion and it’s entirely out of order and premature at this time.
“The Court: I will qualify the bill of exception by stating in connection with the bill of exception, that I presided at the trial of the case and listened attentively to the argument of counsel, both for defendant and plaintiff, that there was but one *263objection made by counsel for the defendant and intervenors and that was as to the reference made by Mr. Segrest to the effect that the intervenor Geraldine Cunningham was worldly wise, or words to that effect. I heard no .objection made to that portion of the argument referred to in the motion for new trial, and made no ruling on it and no instruction was given to the jury.
“Mr. Dunnam: I move the court to exclude the ex parte statement of the court, made after the court had overruled the motion 'for new trial, and ask that our exception be noted and notice of appeal given.
“The Court: I am making my statement as a qualification to your bill of exception, and I am not making any statement except to qualify the bill of exception.
“Mr. Dunnam: Does the court overrule my motion?
“The Court: Yes, sir, and I have qualified the bill of exception.”
At the same time or on the same date the court qualified the bill of exception as follows:
“The above bill of exception is qualified in the following manner: That at the time the argument complained of was made no objection was made to such argument, and the court, by failure of the attorney for the defendant and intervenors to so object, was not afforded the opportunity to instruct the jury in connection with such argument.” (Signed by the Judge.)
“Defendant and intervenors except to the qualification on the bill.” (Signed by the Judge.)
“As qualified, and subject to such qualification, the bill is approved.” (Signed by the Judge.)
The record shows that said bill was filed with the clerk of the court on September 6, 1949.
The only assignment of error assigned to the argument in appellants’ original brief is that “the trial court erred in refusing to set aside the verdict of the jury and grant a new trial on motion of appellants because of misconduct of appellee’s counsel on the trial herein, that the Honorable Claude Segrest, who was plaintiffs’ attorney, in his opening argument to the jury criticized appellants and their attorneys because of their failure to produce as a witness the attorney who represented the parties in the settlement agreement, and failure to prove by said witness that the monies received in the settlement by plaintiff for the benefit of intervenors was not divided into four par-- ' cels among the parties at the time the settlement was made, and in not proving by said witness that the appellant Bertha Tucker did not receive at the time $400.0⅞’ of the amount of the monies received ⅛ the settlement; it'being shown by the record that said attorney was the attorney for appellee in his said transaction, and said conduct on the part of appellee’s counsel being prejudicial and so harmful as that an instruction by the court could not have removed the damaging effect of said conduct on the part of appellee’s counsel. (Thirty-six and Thirty-six A, original ground Motion for New Trial. Tr. pp. 48-49.)”
The only reference to their bill of exception in their original brief was in their argument, in which they said: “Appellants’ bill of exceptions No. 1, Tr. pp. 53-54,. qualified by the court on p. 55, and the testimony of Claude Segrest, appellee’s attorney, from pp. 11-19, supplemental statement of facts, and the testimony of W. V. Dunnam, attorney" for appellants, pp. 2-4, supplemental statement of facts, reveals misconduct on the part of appellee’s counsel which was clearly prejudicial to the rights of appellants in the trial court.”
Appellants now contend that since they excepted to the court’s qualification and the court did not prepare and file a bill of his own, that the bill as originally presented by them must be taken as true as if no qualifications had been made by the court, and when so taken, it shows as a matter of law that the argument was made, that an exception thereto was taken which was overruled, that a request that the jury be instructed not to consider the same was made and refused, and that appellants were prejudiced thereby and therefore this court should reverse the judgment of. the trial court and remand the cause, and in support of said contention submit the following authorities: West Texas Transportation Co. v. Hash, Tex.Civ.App., 43 S.W.2d 152, at page 155; Dailey v. State, 106 Tex. *264Cr.R. 99, 291 S.W. 242; Rhoades v. El Paso & S. W. Ry. Co., Tex.Civ.App., 230 S.W. 481, 483; Palmer v. State, Tex.Civ. App., 226 S.W.2d 634; Robbins v. Wynne, Tex.Com.App., 44 S.W.2d 946; Smerke v. Office Equipment Co., 138 Tex. 236, 158 S.W.2d 302; and Panhandle & Santa Fe Ry. Co. v. Ray, Tex.Civ.App., 221 S.W.2d 936.
Rule 372 T.R.C.P., pertaining to bills of exceptions, provides in part:
“(g) The judge shall submit such bill to the adverse party or his counsel, if in attendance on the court, and if found to be correct, the judge shall sign it -without delay and file it with the clerk.
“(h) If the judge finds such bill incorrect, he shall suggest to the party or his counsel such corrections as he deems necessary therein, and if they are agreed to, he shall make such corrections, sign the bill and file it with the clerk.
“(i) Should the party not agree to such corrections, the judge shall return the bill to him with his refusal indorsed thereon, and shall prepare, sign and file with the clerk such bill of exception as will, in his opinion, present the ruling of the court as it actually occurred.
“(j) Should the party be dissatisfied with said bill filed by the judge, he may, upon procuring the signatures of three respectable bystanders, citizens of this State, attesting to the correctness of the bill as presented by him, have the same filed as part of the record of the cause; and the truth of the matter in reference thereto may be controverted and maintained by affidavits, not exceeding five in number on each side, to be filed with the papers of the cause, within ten days after the filing of said bill and to be considered as a part of the record relating thereto. The truth of such bill of exceptions shall be determined on appeal from such affidavits.”
We are of the opinion that the court, after hearing evidence upon the question, found that no objection was made to this particular argument and that no request for an instruction to the jury not to consider it was made, such finding is binding upon this court, and the judgment of the court based upon conflicting testimony should not be set aside on the ground that the judge failed to prepare, sign and file a bill of exception after the appellants had excepted to his qualification to their bill as presented. The bill of exception as qualified was filed and appears in the record, and is the only one appearing therein. The record does not disclose any request of the appellants or anyone else for the judge to prepare, sign and file a bill of exception. The appellants refer to the bill in their brief as “our bill of exception”, and under such circumstances the presumption is that appellants filed said bill and accepted it as qualified, as provided by T. J., Vol. 3A, sec. 547, p. 704: “A party who accepts and has filed a bill of exceptions which has been qualified or modified by the trial court is bound by the qualification, and when a bill which has been qualified by the court appears in the record, it will be presumed that the qualification was made with the consent of the appellant, in the absence of something in the way of a bill of exceptions signed by the judge or bystanders. Under such circumstances, the qualification becomes a part of the bill itself, and is controlling as to the facts therein stated; it must be accepted as true, and may not be contradicted nor the facts therein stated varied by an ex parte affidavit of counsel. There is nothing in the Rules of Civil Procedure that changes the law in this respect.”
The motion for rehearing is overruled.