Moore v. Copeland

OPINION ON APPELLANT’S MOTION FOR REHEARING

As a part of appellant’s motion for rehearing he has requested that we make three additional findings of fact in substance as follows: (1) That the $3,000.00 paid on or about March 18, 1970, by appellant to appellee representing advance payment of royalties under the lease for a period of one year from February 14, 1970, to February 14, 1971, was paid by check; (2) that appellee expected to receive another check from appellant given in advance payment of royalties under the lease for a period of one year from February 14, 1971, to February 14, 1972; and (3) that appellee knew when he received appellant’s check on February 12, 1971, that this was the advance royalty check which he had been expecting to receive from appellant in advance payment of royalties for a period of one year from February 14, 1971, to February 14, 1972.

In City of Beaumont v. Graham, 441 S.W.2d 829 (Tex.Sup.1969), our Supreme Court discusses the duty of the Courts of Civil Appeals under Rules 453 and 455, T.R.C.P. Among other things, the Supreme Court held that Rule 453 does not require a Court of Civil Appeals to make evidentiary findings or that its opinion repeat all of the evidence or all of the trial court findings which appear elsewhere in the record; and that Courts of Civil Appeals have no jurisdiction to make original findings of fact in cases on appeal; they can only “unfind” facts.

The findings requested by appellant are evidentiary in nature and involve original findings which we have no jurisdiction to make. Under these circumstances appellant’s requests for findings of fact are denied.

We find no merit in the matters raised in appellant’s motion for rehearing and we adhere to our original disposition of the case.