On Motion for Rehearing.
The original opinion is, perhaps, subject to the criticism that it did not, in express terms, state this court’s conclusion as to the question of limitation. The judgment on the second trial of the suit of Lee Rice et al. v. Louis Lipsitz was entered September 24, 1919, and an appeal was prosecuted from this judgment and the same was affirmed by the Court of Civil Appeals on April 16, 1921. 233 S. W. 594. In the original judgment, commissioners of partition were appointed but their report was not entered until May 3, 1922; the sale of the interest of the Rice heirs, under the judgment in the suit above mentioned, was not had until some time in 1923, and the proceeds of said sale did not come into the hands of the trustee until about June 5, 1923. No authority was.cited by appellants holding that under such circumstances the suit was barred, nor do we think limitation available to appellants under the general rules applicable to that subject.
If the judgment in favor of Lee Rice et al. was superseded by Lipsitz’ appeal, we do not think the bar of limitation would begin to operate until that judgment became final. There is nothing in the record to indicate that Lipsitz did not file a supersedeas bond. The burden is upon him who pleads limitation to show the facts which would make his plea available to him,'and until that judgment became final it would appear that any suit brought by appellees, based on negligence in the conduct thereof, would be premature. There is nothing in the record to indicate the time when the terms of said judgment were made known to appellees. The record, as presented, does not indicate their presence at the trial of the suit of Lee Rice et al. v. Louis Lipsitz et al., nor their participation therein. This much is said as to that part of appellee’s suit alleging negligence on the part of the trustee.
It is clear that the question of limitation was not present in regard to the appellee’s claim to recover the amount realized by the trustee from the sale of the lands, as no cause of action could accrue to appellee until after the sale. We do not believe either the two or four years’ statute of limitation can be applied, under the evidence.
In order that there may be no misunderstanding as to the effect of the testimony of the trial judge, the statement is here made that this court did not consider his testimony as to his understanding and intention, in rendering the judgment that he did in the case above referred to. The intention and understanding of the trial judge in rendering a judgment cannot be shown by parol testimony, as this court has heretofore plainly held in the case of Austin v. Conaway (Tex. Civ. App.) 283 S. W. 189, but we think the testimony that neither the trustee nor his attorney made any contention for the rendition of a judgment against the Rice heirs for the full amount chargeable against their interest was admissible on the question of negligence. Any one else present at the trial could have given the same testimony. There was no objection to the calling of trial judge as a witness on the ground that the same proof could have been made by other parties, but the objection was that such testimony was not admissible at all.
Appellants urge, quite plausibly, that a further deduction from the amount of the judgment should be made of, at least, one-half the sum which was paid by appellant Lipsitz to discharge a prior lien against the interest of the Rice heirs-in the lands awarded to them in the first suit. The question was not discussed in the original opinion because not presented by any of the assignments of error or propositions thereunder, but the matter is now urged as fundamental.
It is true that we did, in the original opinion, inquire extensively into the amount the appellees were entitled to recover under their pleadings, as this presents a question of fundamental error, for in no case can a party recover more than the amount alleged. But as to whether there should be deducted from the amount of appellees’ recovery an amount paid out by appellant presents a different question. The matter was not pleaded by either of the parties. It appeared in the judgment in Lee Rice et al. v. Louis Lipsitz et al., as one of the court’s findings of fact in that case, to the effect that the appellant Lipsitz, trustee, had paid the sum of $448.10 in satisfaction of the indebtedness secured by a prior lien upon one of the tracts of land recovered by the Rice heirs. We have concluded that the failure to deduct one-half of this amount from the amount awarded to appellees does not present a question of fundamental error, but only presents a question of the court having rendered judgment for a greater amount than that justified by the evidence and therefore cannot be considered by this court, unless assigned.
Therefore the motion for rehearing is overruled.