Sawyer v. First National Bank of Hico , 41 Tex. Civ. App. 486 ( 1906 )

I concur in the judgment of affirmance in this case, but without endorsing all that is said in the majority opinion.

In my opinion, it was necessary for the plaintiff to prove, as is alleged, that the judgment recovered by Sawyer against Cooper Co., in the former suit, was for the benefit of the plaintiff. The trial court found as a fact that the suit referred to was brought, and the judgment recovered, for the benefit of "the beneficiaries in said deed of trust," which finding includes the plaintiff, who was one of the beneficiaries. Appellants are not in a position to challenge this finding, because, while the statement of facts does not affirmatively and specifically show that the judgment referred to was for the benefit of the plaintiff, it does show that Sawyer, as trustee, instituted a suit against Cooper Co., and recovered a judgment for the amount alleged; and the statement of facts recites that the judgment was introduced in evidence, but it is not copied in the statement of facts, and the description therein given of it does not negative the fact that it was rendered for the benefit of the beneficiaries in the trust deed, as found by the court. In other words, the statement of facts shows on its face that it is incomplete, and that the trial court had before it documentary evidence which is not embraced in the statement of facts brought up by appellant.

The burden rests upon appellants to show that the finding of fact referred to was not supported by the testimony submitted to the trial court; and, having brought up a statement of facts which shows upon its face that it does not embrace all the testimony submitted to and considered by the court below, appellants are not in a position to complain of the finding of fact referred to. (Tennille v. Morgan, 35 S.W. Rep., 514.) And, assuming the fact to be as found by the trial judge, then, in my opinion, the proper judgment was rendered.

Affirmed.

Writ of error refused.