On Appellant’s Motion for Rehearing
Appellant assigns four points of error in his motion for rehearing. They are substantially: (1) The court erred in deciding the cause on a point not raised either in the trial court or the Court of Civil Appeals, such point not being fundamental error under the decisions of our courts; (2) the court erred in holding that appellant waived his plea of privilege by filing his motion for costs against the appellee in the trial court and obtaining a ruling thereon; (3) the court erred in affirming the cause and in refusing to consider for any purpose the brief of appellant or the points set forth therein; (4) the court erred in searching the record to discover a point on which to affirm this cause without at the same time *763searching the record to determine whether there was a case against the appellant in the first place, and in failing after such determination to reverse the cause.
Appellant relies on Douglas v. Douglas, Tex.Civ.App., 167 S.W.2d 774 (no writ history); Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979; Edgar v. Schmidt, Tex.Civ.App., 243 S.W.2d 414 (no writ history) ; and Rule 374, T.R.C.P. We are not in accord with appellant’s points or the aplication of the cases there cited for reasons hereinafter briefly noted.
First of all, this cause was tried before the court without the aid of a jury and there was no request for findings of fact and conclusions of law and none were filed. It is true that none of the appellees set up in their briefs that the appellant had waived the plea of privilege he had filed because he had invoked the jurisdiction of the court as herein set out; nor have they made reply to appellant’s motion for rehearing and set up such waiver.
Rule 434, T.R.C.P., provides in part:
“Provided, first, that no judgment shall be reversed on appeal and a new trial ordered in any cause on the .ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, or was such as probably prevented the appellant from making a proper presentation of the case to the appellate court; and if it appear to the court that the error affects a part only of the matter in controversy, and the issues are sev-erable, the judgment shall only be reversed and a new trial ordered as to that part affected by such error.”
Assuming, without deciding, that the trial court did not take into consideration the rule for costs interposed by appellant, and entered his judgment against appellant on other grounds, yet, if the court’s judgment is correct and one legal reason exists to support the trial court’s judgment, then in such event we think the judgment must be affirmed. Is not that the exact situation before us? In Smith v. Basham, Tex.Civ.App., Dallas, 227 S.W.2d 853, 855, affirmed in 149 Tex. 279, 233 S.W.2d 297, we find this statement by Chief Justice Bond: “Jurisdictional questions are ordinarily determined by an inspection of the record or transcript thereof.” This court believes that it is the duty of its members to examine the transcript, as was done in this case. Needless to say, the appellate court wants to know whether the cause was tried with or without the aid of a jury, and in order to ascertain this fact the court customarily examines the transcript. In so doing we found that the defendant had interposed in this case the rule for costs.
In Ramsey v. Dunlop, supra, cited by appellant, we find this statement [146 Tex. 196, 205 S.W.2d 982]:
“After our appellate courts thus for 89 years continued to pass on errors unassigned but apparent of record, in the face of- a statute which declared that all errors not distinctly specified by assignment in the trial court should be considered as waived, must we now hold that our courts of civil appeals have no authority to consider such errors because Art. 1837 has again been repealed by the substantial reenactment of Art. 1844 in the form of Rule 374, T.R.C.P.? As to errors that are truly fundamental, we think the answer must be No.”
In the case at bar we- are' not dealing with any assignment of error of the appellee’s assailing the judgment of the trial court. They are asking only for an affirmance. So we go back to the proposition that if there is a valid legal reason why the judgment of the trial court should be affirmed, we think it is our duty to do so under Rule 434, supra.
*764If appellant’s position is correct, any judgment of the trial court correctly decided, although the decision thereof was based on a misconception of the law by the trial judge, could be set aside on appeal if appellee failed in his brief to assign by counter point a correct reason for the af-firmance of the judgment. We do not so understand our procedure under the foregoing conditions.
Needless to say, Rule 89, T.R.C.P., takes care of the costs where pleas of privilege are sustained.
It follows that we are of the view that the trial court entered the correct order in overruling the plea of privilege, and appellant’s motion is in all things overruled.