On Motion for Rehearing
On motion for rehearing appellees complain of the action of this court in reversing the judgment of the trial court in favor of appellees and in remanding the case for a new trial, or the reason that appellant’s first point of appeal, on which this court based its action in reversing and remanding said cause in our original opinion, was not based upon any assignments of error presented in appellant’s motion for new trial, and for the 'reason that the statement of facts on which the judgment of the trial court was based had never been filed in the trial court in compliance, with Rule 381, Texas Rules of Civil Procedure. A reconsideration of the record convinces us that both of these contentions must bá sustained.
In its first point of error appellant complains of the action of the trial court in overruling the application for continuance because of the absence from the state of a witness, Chester Harkins, who was alleged in the application to have been the individual who actually prepared the papers for Mrs. Burwell’s signature.
On re-examining the record we find that the point relied upon was not based •upon any ground urged in appellant’s motion for new trial. Under Rules 374 and 418(b), Texas Rules of Civil Procedure, it cannot be considered by this court for any purpose, and the judgment of the trial court should have been affirmed. Stillman v. Hirsch, 128 Tex. 359, 99 S.W.2d 270; Barrera v. Duval County Ranch Co., Tex.Civ.App., 135 S.W.2d 518; Frazier Jelke & Co. v. Chapman Minerals Corp., Tex.Civ.App., 149 S.W.2d 1101; Cooper v. Cooper, Tex.Civ.App., 168 S.W.2d 686; Doherty v. San Augustine Ind. School District, Tex.Civ.App., 178 S.W.2d 866.
This court based its action in reversing and remanding this case in its original opinion on the pleadings in the case and on facts appearing outside of the statement of facts. The record discloses that the statement of facts in the cause has never been filed in the trial court-in compliance with Rule 381, Texas Rules of Civil Procedure. The motion for new trial was overruled by the trial court on July 10, 1945. The statement of facts was inadvertently filed in this court on September 3, 1945, prior to its approval by the trial judge. On October 1, 1945, on appellant’s motion, this court extended the time for the filing of said statement of facts to October 15, 1945. On October 11, 1945, after a hearing, the trial court refused a motion of appellant to file said statement of facts with the district clerk of Harris County. Appellees duly filed and insisted upon their motion to strike such statement of facts. This motion was carried with the case on appeal.
Rule 381 provides that when an appeal is taken from a judgment rendered in a civil cause the party appealing shall have 50 days after final judgment, or order overruling motion for new trial, .within which to prepare and file a statement of facts in'the trial court. It provides that, on application of the party appealing, the judge of the trial court may, for good cause shown, extend time for filing such statement of facts, but that the time shall not be extended in any case so as to delay the filing thereof beyond the time for filing transcript, bills of exception, and statement of facts in the Court, of Civil Appeals.
In construing said Rule 381 the courts of this state have uniformly held that, where a statement of facts has never *625been filed in the trial court, it will not be considered but will be stricken out or disregarded by the appellate court on motion of a party, or on its own motion. Seaboard Fire & Marine Ins. Co. v. Halbert et al., Tex.Civ.App., 173 S.W.2d 180.
Under above authorities the statement of facts in this case is not eligible for filing in this court, and since the court cannot determine what evidence was adduced in the trial court in the absence of a statement of .facts, it must be presumed that the jury found the facts to be such as would support the judgment that was rendered. As stated by the Supreme Court' in the case of Commercial Credit Corp. v. Smith, 143 Tex. 612, 187 S.W.2d 363, 365, “It is not open to question that in the absence of a statement of facts, every presumption must be indulged in favor of the trial court’s findings and judgment and where there are no findings and no statement of facts, such facts as are necessary to support the judgment must be presumed to have been found,” citing authorities.
It follows from above conclusions that ap-pellees’ motion for rehearing must be granted and that the judgment of the trial court must be in all things affirmed.
Affirmed.
Motion granted.