On Rehearing
Appellee in his motion for rehearing charges that we erred in considering and sustaining appellant’s thirteenth point for the reason that (1) appellant filed no bill of exceptions complaining of the trial court’s failure to make findings of fact and conclusions of law; and (2) appellant failed to call the attention of the trial judge to his omission to make findings of fact and conclusions of law as required by Rule 297, T.R.C.P.
In support of the first of the above points appellee cites us to the cases of Steppe v. O’Day, Tex.Civ.App., 315 S.W.2d 599, 603; Smith v. Vankirk, Tex.Civ.App., 314 S.W.2d 377, 380; Spradlin v. Rosebud Feed & Grain Co., Tex.Civ.App., 294 S.W.2d 301, 302; Gunst v. Dallas Trust & Savings Bank, Tex.Civ.App., 8 S.W.2d 806, 807; and 4 Tex.Jur.2d 37.
We do not disagree with the holdings in the above cases, but we are of the opinion that their holdings are not applicable under the circumstances presented in the instant case. Rule 419, T.R.C.P., provides that any statement made by appellant in his original brief as to the facts or the record may be accepted by the court as correct unless challenged by the opposing party. In this case appellant stated expressly in his brief that the trial court failed to file findings of fact and conclusions of law. This statement by appellant was not only not challenged by appellee, it was admitted by appellee to be true.
We quote from appellant’s brief:
“Thirteenth Point Restated
“The error of the trial court in failing to file findings of fact and conclusions of law. * * *
“Though request was timely made and the proceedings were available, the present judge failed to file such findings of fact and conclusions of law; *
In his brief appellee answered as follows:
“Thirteenth Counterpoint Restated
“The trial court did not err in failing to file findings of fact and conclusions of law, because the judge of the trial court is now deceased and left no memorandum of office, and for the further reason that the appellant has his Statement of Facts upon which to rely. * *
“Appellee would further show that the failure of a judge to file conclusions of fact is not grounds for reversal when there is a full Statement of Facts in the record, and it does not appear that the appellant has been or could be injured by reason of the non-performance of such duty by the judge.
“Appellee would further show that it would have been futile on the part of the present judge of the Juvenile court of Dallas County, Texas, to attempt to make any finding of fact or conclusion of law, and such effort would have been useless and of no effect in view of the death of the trial judge prior to the entry of judgment in the instant case.”
The purpose of a bill of exceptions is simply to show what occurred in the trial court. Gulf Coast Transport Co. v. Standard Milling Co., Tex.Com.App., 252 S.W. 751, 754; Whatley v. Davis, Tex.Civ.App., 116 S.W.2d 466. If what occurred otherwise appears there is no need for a bill of exceptions. In this case appellant asserts and appellee admits that the trial court did not file findings of fact and conclusions of law. Under Rule 419, T.R.C.P., we may accept these statements as true.
In his second point on rehearing appellee contends that it cannot be known from the record whether appellant’s second letter to the trial judge actually was ever seen by the judge. Appellee cites cases holding that the reminder notice, pursuant to Rule 297, *600T.R.C.P., must be called to the attention of the judge — it is not sufficient merely to file the notice with the clerk.
Again we do not disagree with the holdings in the cases cited by appellee. We think the record discloses that the notice was brought to the personal attention of the trial judge.
The second letter of notification, including a notation at the bottom left-hand corner, was as follows:
“February 29, 1960
“Dear Judge:
“In checking with your Clerk today, she advised that findings of fact and conclusions of law have not been filed in the above case. As provided by the Rule, this omission is hereby called to your attention.
“Yours very truly “/s/ Gilbert P. Howard.
“3-1-60
“Called Mr. Donosky.”
With our permission appellant filed a supplemental transcript which contains a copy of an affidavit by the trial judge which affidavit includes this statement:
“I have examined page 85 of the Transcript in said cause on appeal whereon there is contained a copy of a letter from Mr. Gilbert P. Howard to me, dated February 29, 1960. Same is a true and correct copy of the original of said letter which was received by me on March 1, 1960. After receiving said letter calling my attention to the fact that findings of fact and conclusions of law previously requested by Plaintiff as Appellant in said cause on appeal had not been filed, I called Mr. Samuel Donosky by telephone, called his attention to said letter of February 29, 1960, and told him I would have to depend on him to prepare such findings and conclusions because I had no knowledge of the same. I made notation of such call in my own handwriting on said letter and thereupon had the Clerk file said letter on said date of March 1, 1960.”
It will be observed that this affidavit does not attempt to change or contradict any document shown in the transcript. It merely makes clear that which could not be clear from the typewritten copy of appellant’s, letter as shown in the transcript, that is, that the notation “3-1-60 called Mr. Don-osky” was written there by the Judge in his own handwriting. Certainly it shows that the letter was brought to the attention of the Judge.
Over appellee’s objection we sustained appellant’s motion for leave to file the Supplemental Transcript. We think our action was proper under Tucker v. Boyd, 156 Tex. 262, 293 S.W.2d 841, 843, in which case our Supreme Court under Rule 428, T. R.C.P., permitted the filing of a certificate by a District Judge in order to make the record speak the truth.
Appellee’s motion for rehearing is overruled.