On Motions for Rehearing
PER CURIAM.In this case findings of fact were made and filed by the trial court. They were favorable to appellant and, in our opinion, if supported -by the evidence required that judgment be rendered for appellant.
These findings of fact were duly excepted to by appellee.
Notwithstanding this situation the trial court rendered judgment for appellee.
Appellant being satisfied with the fact findings made by the court did not file a statement of facts and no statement of facts is in the record.
Appellee contends that the judgment of the court is correct because the fact findings of the court are not supported by the evidence, a question we -cannot determine without a statement of facts.
We have heretofore reversed and remanded the cause and have assessed the costs against appellant.
Both parties have filed motions for rehearing and alternative motions to certify the involved procedural questions to the Supreme -Court.
Appellant complains of being held for costs and also would have us render judgment in his behalf.
Appellee insists that the judgment be áffirmed on 'presumption and because of appellant’s failure to file a statement of facts.
Rule 371, T.R.C.P., provides that “The record on appeal shall consist of a tran*197script and, where necessary to the appeal, a statement of facts.”
Rule 386 provides that the appellant shall file the transcript and statement of facts in the Court of Civil Appeals.
Rule 377, Sec. (c), requires appellant to give appellee notice of the evidence which he desires in the statement of facts, and section (e) of this rule provides that either the winning or losing party may be required to pay for evidence unnecessarily included.
Rule 377-a provides that either party, to induce the opposing party to accept an abbreviated statement of facts, may file with the clerk of the trial court a statement of the points on which he will rely on appeal, and he is thereafter limited to such points.
Rule 307 provides, in part, that in non-jury cases, where findings of fact are requested and filed, that the party “claiming that the findings of the court * * * do not support the judgment, may have noted in the record an exception to said judgment and thereupon take an appeal * * * without a statement of facts ⅜ ⅝ ⅝
There is no rule requiring an appellee to file a statement of facts.
Appellant made no attempt to comply with any of the above rules relating to a statement of facts. If this failure is justified it is because of Rule 307.
We do not believe Rule 307 applicable when, as here, the findings of fact are excepted to ,by the opposite party. The purpose of such exception is to notify the adverse party of some dissatisfaction with the findings of fact. Hardwick v. Trinity Universal Ins. Co., Tex.Civ.App., 89 S.W.2d 500 (Eastland C.C.A., Writ Dis.), and in such case the appellate court may review the findings of the trial court and is not bound by the trial court’s findings unless they are supported by the evidence. Maro Co. v. State, Tex.Civ.App., 168 S.W.2d 510 (Amarillo C.C.A. Writ Ref.). Of course, such review can not be made unless there is a 'Statement of facts.
Th'e question then arises as to whose duty it was to prepare and file a statement of facts.
Appellant says he was satisfied with the findings of fact and had no use for a statement of facts. This is quite true, but, on the other hand, appellee had a very satisfactory judgment, and, if this judgment were permitted to become final, the favorable findings would be of no value to appellant.
The overall appellate burden is upon the one who seeks relief from an adverse judgment. This includes the duty of filing a statement of facts in accordance with the rules when a statement of facts is necessary. As indicated above a statement of facts was necessary in this case because appellee did not acquiesce in the fact findings and in order that his cross-assignments might be determined.
If an appellee had the duty of filing a statement of facts it would -be one difficult of performance. Knowledge that no statement of facts had 'been filed or that one would not be filed by appellant would likely come too late. The rules make no provision for such a situation.
Even though it was appellant’s duty to file a statement of facts we cannot, as appellee asks, affirm the judgment on the ground that in the absence of a statement of facts it should be presumed that the evidence supports the judgment. Such presumption, in view of the express findings of the trial judge, is too violent for us to entertain.
Motions of both parties for rehearing and to certify and appellant’s motion to retax costs are all overruled.
Overruled.