OPINION ON MOTION FOR REHEARING AND ADDITIONAL CONCLUSIONS.
It is contended by the appellant in his motion for a rehearing that the record shows that W. S. Heard was paid $668 out of the moneys paid by appellant in satisfaction of the judgment in the case of Childers v. Scott, and that this sum is in excess of the value of his lien on the personal property converted by Scott and should be so applied. It is further insisted that Heard failed to make an application and that this court should apply the same to the satisfaction of the said lien. The pleading of Heard, filed herein, sets up that since the institution of this suit there has been paid on the note held by him against Vaughan, upon which Cox was surety, the sum of $668, being money received by Cox out of the amount paid in satisfaction of said judgment. The appellant, in his pleading, denies that E. M. Cox had received anything on said note. The pleading of Heard sets up the note, prays judgment for the balance thereof, and asserts a lien on the personal property levied upon by Scott, and prays for a foreclosure of the same. The court rendered judgment against B. H. Vaughan as maker and E. M. Cox, as surety, for $917.17, being balance due on said note, and found that W. S. Heard had a valid and subsisting lien on the property to secure the same. It was to preserve this lien, among other things, that the receivership proceedings were had. The court ordered the property upon which the lien was asserted sold, and the same was sold by the receiver for $657, and the proceeds were paid into the registry of the court. The judgment required this sum, less the costs of the receiver*198ship, to be paid over to W. S. Heard. Appellant assumes that this sum is the value of Heard’s lien on the property, notwithstanding the court found that the property upon which the lien existed was of the value of $1231.58 when appellant attached the same. Conceding, for the purposes of this discussion, that said sum represents the value of the lien and that Heard received $668 on the note paid by Cox out of the money paid by appellant on the Childers judgment, still we think that appellant’s contention is not sound. The record does not show that the same was paid in satisfaction of said lien. Heard did not so treat it, nor did he so apply it. Appellant did not, in his pleadings, ask that the same be so applied. As stated above, appellant denies that anything had been paid on said note. After such payment Heard asserted a lien on the property and asked that it be foreclosed. The court found that he had a valid and subsisting lien and enforced it. The judgment, in our opinion, fairly embraced a finding by the court that the payment had been applied by Heard to the satisfaction of that part of his note in excess of the value of the lien. The appellant has not assigned error to the failure of the trial court to apply the payment of the $668 in satisfaction of Heard’s lien. The suggestion is made here for the first time, in argument, that the same constitutes fundamental error, and that we should so hold. In this we do not concur. As stated, the appellant did not ask in his pleading that it be so applied, and the record fairly shows that Heard applied the money received by him to that part of his note which was in excess of the value of his lien, and that the trial court so held.
We conclude that the judgment was proper, and that the motions for rehearing and for additional conclusions should be overruled.
Overruled.
OPINION ON APPELLANT’S MOTION FOR CERTIORARI.
After appellees’ motion to strike out statement of facts in this case had been sustained, and after the affirmance of the judgment, appellant filed a motion in the lower court to amend and correct the judgment from which this appeal was taken so as to show that the case was tried in that court on the 17th day of October, 1901, on an agreed statement of facts. On November 12, 1902, the said motion was sustained in part and said judgment was amended. As amended it contains the following recital: “And it appearing to the court that during the November term of court, 1901, the judgment entered in this cause was submitted to one of the attorneys for W. Scott, and that conclusions of law and fact were presented to said attorney for said W. Scott before they were filed, and it appearing to the court that in rendering the judgment in this cause at said term the agreed statement of facts signed by counsel and filed in this cause on October 17, 1901, before the trial of said cause, was considered by the court in rendering said judgment, and it appearing to the court that the papers in the *199case of Childers v. Scott and the judgment found by default in this case, and no other evidence, were also considered by the court; and it appearing to the court that this ease was tried on the 17th day of October, 1901, and taken by the court under advisement until the 11th day of November, 1901, it is ordered that the judgment rendered is hereby reformed so as to incorporate therein the foregoing matters, and in other respects to read as originally rendered, except that it show that it was entered on the 17th day of October, 1901.”
The appellant has filed a motion for certiorari to the clerk of the District Court of Hill County, commanding him to certify said amended and corrected judgment to this court. A certified copy of said judgment, as amended, is attached to said motion, and it is agreed by the appellees that the same may be taken and considered as an answer to said writ, should this court hold that the certiorari should issue.
Appellees resist the granting of the motion. The motion to strike out the statement of facts was filed in this court May 22, 1902. It was submitted on the 31st day of May, 1902. The appellant did not contend in reply to that motion that the judgment appealed from was in any way defective in failing to show that the case was tried in the court below on the agreed statement of facts. It was not until the motion to strike out the statement of facts had been sustained, and after the affirmance of the judgment, that the suggestion was first made. It appears from the copy of the amended judgment, made an exhibit to the motion for certiorari, that the judgment, prior to its entry upon the minutes by the clerk, was submitted to counsel for appellant, as was also the court’s conclusions of law and fact, before the same were filed. We do not think, under these facts, that the appellant should be heard to say that the judgment appealed from did not recite the true facts. Appellant’s counsel, having had the judgment submitted to him before being put of record and having failed to make any complaint thereto or to make a motion to reform, ought not, after appeal to this court is perfected and a motion to strike out the statement of facts has been filed, submitted, and sustained, and the judgment affirmed, be heard for the first time to say that the judgment appealed from is defective in failing to show that the case was tried upon such agreed statement of facts. If the judgment did not recite the facts correctly, the appellant ought not to have waited and speculated as to what the judgment of the court on the motion to strike out would be, but should have sought to have the judgment corrected when attention was called to the matter in the motion to strike out. Ross v. McGowen, 58 Texas, 603; Railway v. Scott, 78 Texas, 360; Heyslip v. Pomeroy, 32 S. W. Rep., 124.
However, the result would be the same if we were to grant the motion. The judgment as amended shows that the case was tried in the lower court on said agreed statement" and the papers in the case of Childers v. Scott and the facts found by the judgment by default in this case. The agreed "statement does not contain the papers in the case of Childers v. Scott, nor are said papers copied in the record, and *200there is nothing in the record to show what facts are contained in said papers. So far as the record shows we are unable to say that the said agreed statement of facts and the papers in the case of Childers v. Scott and.the facts found in the judgment by default in this case are not sufficient to sustain the conclusions of fact found by the trial court.
The motion for certiorari is overruled.
Writ of error refused.