Suzanne Mann DUVALL, Appellant, v. Cletys SADLER, Jeannette Williams Sadler, Philip M. Sadler and Jacquelyn Sadler, Appellees, 711 S.W.2d 369

CHADICK, Justice (Retired). This suit originated as an action to remove cloud from title, for partition of farm land, and for damages. Prior to the judgment underlying this appeal, title issues had been resolved and severed. The parties to the action are Mrs. Suzanne Mann Duvall, plaintiff and now appellant, and Cletys Sadler, Jeannette Williams Sadler, Philip M. Sadler, and Jacquelyn Sadler, defendants and now appellees. The judgment rendered ordered the land partitioned in kind, appointed commissioners to effect the partition, and awarded appellant Duvall damages and costs.

Being dissatisfied with the judgment, Duvall has appealed. ■ For convenience, the points of error initially noticed will be grouped for discussion as, to a large extent, the issues raised have a common factual background. Point of Error 3 addresses the trial court’s finding that Duvall agreed to try the case solely on the basis of stipulations of fact entered into by the parties. Point of Error 9 addresses the trial court’s refusal to allow Duvall a jury trial and Point of Error 10 addresses the trial court’s finding that Duvall had waived a jury trial.

Timely demand under Tex.R.Civ.P. 216 for and payment of a jury fee by Duvall is unquestioned. Also there is no question but that the trial pleadings of the parties raise fact issues appropriate for jury determination. A citizen’s right to a trial by jury is a constitutional prerogative and should not be denied. In Texas & Pacific Railway Company v. Van Zandt, 159 Tex. 178, 317 S.W.2d 528 (1958), it is said “[t]he mere denial of that right raises an inference of probable harm.” See also, Harris v. Harris, 679 S.W.2d 75 (Tex.App. — Dallas 1984, writ dism'd).

However, when a jury trial is legally inappropriate to the case or clearly waived trial is conformed to the circumstance. See 35 Tex.Jur.2d Jury § 34 (1962). The Sadlers justify the trial court’s judgment on the grounds that Duvall failed to file a complete statement of facts, and therefore, it must be presumed that evk dence exists to support the findings and judgment rendered upon the findings, and that Duvall waived a jury trial and agreed to submit the case upon stipulations made by the parties.

The statement of facts in the record shows the trial commenced October 22, 1984, and the report of proceedings of that date takes up Pages 2-11 of the eleven page volume. The next volume of the statement of facts covers proceedings on October 23, 1984, and the report occupies Pages 1-17 of the seventeen page volume.

Third is a volume that contains an index to exhibits and purports to report on Pages 2-63 proceedings on October 24 and 25, 1984, and ends with the reporter’s notation “(Hearing concluded.).” Filed as a part of the statement of facts is a volume labeled “Exhibits” which contains exhibits referred to in the reported proceedings. Whether the footnoted affidavit be considered or not, it appears from the record filed that this Court has before it a statement of facts certified as containing a true and correct transcription of all proceedings had in the case in the trial court. Tex.R.

Civ.P. 376b makes it the duty of the official court reporter to attend all sessions of the court, make a full record of the evidence, etc. There is a presumption that an official duty is properly performed. It appears that the record on file is complete for the purposes of this appeal, and the presumptions that arise from an incomplete statement of facts are not applicable. Therefore, there is no basis for presumption, by reason of an abbreviated statement of facts, that evidence exists to support findings of fact made by the trial judge and to support the judgment rendered on the findings.

The instrument containing the parties’ agreed stipulations is in compliance with Tex.R.Civ.P. 11 and was filed in the trial court. This agreement by its terms does not bind the parties to submit the case to the trial judge for determination, nor for trial by judge or jury upon the stipulated facts alone. The stipulations merely eliminated the necessity of proving the facts agreed upon in the written instrument, whether trial is by judge or jury. See May v. City of McKinney, 479 S.W.2d 114 (Tex.Civ.App. — Dallas 1972, writ ref’d n.r.e.).

An agreement, if one exists, to submit the case upon the stipulations embodied in the written agreement must be found outside its text.

The trial court found both as facts and as conclusions of law that: [T]he Plaintiff acting through her attorney and through his action and conduct waived a jury and agreed that the Court would hear and determine all factual issues. [Tjhe parties entered into a written stipulation of all facts necessary for the Court to decide the controversy. [T]he stipulation of the parties filed October 24, 1984 was entered into for presentation to and use of the Court so as to avoid the necessity of a jury. [A]ll parties agreed to the withdrawal of the cause from the jury and agreed that the Court should try the same on the basis of stipulation of facts by the parties.

The statement of facts contains a record of intermittent conversations between Du-vall’s counsel and the presiding judge regarding issues raised by the pleadings and evidence that counsel expected to offer for jury consideration. The last page of the statement of facts containing the proceedings on October 23 (second day of trial) shows that just before the hearing ended for the day counsel for Duvall made this request: MR. MEACHUM: Your Honor, I would like to have a recess so that I can confer with co-counsel to see if there is anything to try. THE COURT: You may.

This indicates that no agreement existed at the time to withdraw the case from trial by jury or to submit it to the court on agreed stipulations. The next day the noon recess was reached, and as if finishing presentation of evidence on the bill of exceptions that had occupied the morning, counsel for Duvall announced that the evidence produced would be offered as a bill of exception and asked specifically, “Will the court receive our bill?” The court answered, “The bill is received.” Then a colloquy between the court and counsel for the parties ensued.

The subject was a witness who was not available until the noon recess. After the noon recess, the witness in question was interrogated, and Duvall was recalled for further questioning. While Duvall was on the witness stand the record shows a running conversation between Duvall’s counsel and the judge, and then the following: THE COURT: I think you will need to go on the bill of exceptions on that. MR. MEACHUM: So you are going to exclude the certified copies of the documents on the chain of title as evidence in this case?

THE COURT: Anything that is not part of the stipulations that has been entered previously before this Court, yes. MR. MEACHUM: Your Honor, is the Court’s position that the entire case is tried on the stipulations? THE COURT: Yes, sir. MR. MEACHUM: Because there is no agreement between the parties, and there is no agreement on the record, that that would be all of the evidence that we would be presenting in this case. We have stipulated to certain facts but we have not agreed to close the case or rest based upon that evidence alone.

The statement of facts shows that at this juncture the court and counsel for all parties engaged in a lengthy discussion, some of which was off the record at the direction of the presiding judge, then the following occurred: MR. MEACHUM: Your Honor, if I understand the Court’s ruling, we will not be allowed a jury issue on anything from this point on, and no evidence will be presented to the jury at this point, is that correct? THE COURT: That is correct. The Court finds that a jury has been waived. MR. MEACHUM: Okay. Let us note on the record our exception that we have never waived a jury in this case.

As I understand, the Court has ruled that you will accept and rule on the case purely on the stipulations that were signed and entered yesterday? THE COURT: That is correct. MR. MEACHUM: Let me reitterate (sic) our position — that we have never agreed under Rule 11 to try the whole case on those stipulations.

The foregoing objections and rulings are followed immediately in the statement of facts by a recitation by the trial judge “for the purpose of clarification of the record” which included this: After conference, the Court was informed by counsel that they intended to submit the case to the Court on stipulations without the need of a jury, if those stipulations could be agreed to. The jury was released until 1:30 p.m. At that time counsel for both sides informed the Court that more time was needed to work out the stipulations. At that time the jury was recessed until 9:30 a.m. Wednesday morning.

At approximately 9:25 a.m. Wednesday morning counsel for both sides informed the Court that they had agreed to the stipulations; that the stipulations had been signed by all counsel and parties; and that the stipulations at that time were presented to the Court. At that time the jury was released after an explanation to them of the delays that had been incurred in this case. The Court finds that the agreement, that the stipulations — that the agreement and stipulations that were entered into were entered into in light of the Court’s ruling at the hearing and conference Tuesday morning.

This recitation was followed by a pronouncement of findings upon numerous factual issues determining the merit of the action and pronouncement of judgment without the intervention of a jury and based upon the stipulation of facts on file. When appropriately challenged, a trial judge's Tex.R.Civ.P. 296 findings of fact will not support a judgment unless such findings are supported by evidence in the record. Lone Star Gas Co. v. Howard Corp., 556 S.W.2d 372 (Tex.Civ.App. — Tex-arkana 1977), writ refd n.r.e. per curiam, 568 S.W.2d 129 (Tex.1978); Corporate Personnel Consultants v.

Wynn Oil Co., 543 S.W.2d 746 (Tex.Civ.App. — Texarkana 1976, no writ); 4 R. McDonald, Texas Civil Practice in District and County Courts § 16.05 (rev.1984). To allow a presiding judge to recite in the record facts not theretofore or thereafter introduced into evidence, and then use such recited facts to support his Rule 296 findings, would allow him to hoist himself by his own bootstraps over the requirement that his findings be supported by evidence in the record.

While it may not be said that the next cited cases are precisely in point, they broadly support the view that facts recited by the trial judge in “clarification of the record,” but not otherwise shown by the statement of facts, will not support Rule 296 findings and conclusions that he thereafter made. In the Interest of W.E.R., 669 S.W.2d 716 (Tex.1984); Tejas Trail Property Owners Association v. Holt, 516 S.W.2d 441 (Tex.Civ.App. — Port Worth 1974, no writ); Tongate v. Texas Real Estate Commission, 450 S.W.2d 761 (Tex.Civ.App.— Fort Worth 1970, no writ); Rutledge v.

Valley Evening Monitor, 289 S.W.2d 952 (Tex.Civ.App. — San Antonio 1956, no writ); Kinney v. Shugart, 234 S.W.2d 451 (Tex.Civ.App. — Eastland 1950, writ refd); Ramirez v. Milton Provision Co., 231 S.W.2d 547 (Tex.Civ.App. — San Antonio 1950, no writ). On the question generally, see Swanson v. Swanson, 148 Tex. 600, 228 S.W.2d 156 (1950); Rosetta v. Rosetta, 525 S.W.2d 255 (Tex.Civ.App — Tyler 1975, no writ); Miller v. Burke, 401 S.W.2d 852 (Tex.Civ.App. — Waco 1966, no writ).

Since the findings of fact included in the trial judge’s recital may not be considered, the statement of facts does not contain or report any proceedings, statement or action by which Duvall or her counsel agreed to submit the case upon the stipulations on file. Consequently, there is no evidence to support the court’s Rule 296 findings previously quoted respecting trial on stipulations. The findings will be disregarded. Duvall’s trial petition alleged the Sadlers were cotenants with her, she owning a one-fourth and they three-fourths undivided interest in the land in question.

She alleged and sought damages from them on the grounds of wrongful ouster, for wrongful harvesting of merchantable timber at its manufactured value, but alternatively at its stumpage value, for waste, for the intrinsic value of destroyed noncommercial timber, for attorney’s fees and costs. The stipulations on file do not reflect agreement upon facts pertinent to all potential factual issues arising out of the various allegations, grounds and pleadings of the parties.

Duvall’s alternative pleading for damages for the stumpage value of the merchantable timber harvested by her cotenants is a brief but clear example of potential jury issues not resolved by stipulated facts. She alleged such value was $148,000.00. Under her pleadings she was entitled to have a jury determine the amount of timber harvested and its stump-age value.

The only stipulation referable to the factual issues in this respect is the agreement that the Sadlers “received $86,-243.03 for the sale of timber off of the said farm land during the years 1976 and 1977.” The court’s action in denying a jury trial upon the issues violated Duvall’s right to have the issues determined by jury. In a closely parallel case, Wm. D. Cleveland & Sons v. Smith, 102 Tex. 490, 119 S.W. 843 (1909), the Supreme Court said: There were questions of fact in the case upon which plaintiffs in error were entitled by both the Constitution and the statute to have a jury pass.

The trial court, in order to render the judgment, had to find facts which it was the right of the plaintiffs in error to have only a jury find; and such findings cannot support a judgment thus erroneously rendered. The same conclusion is reached here. See also, 35 Tex.Jur.2d Jury § 34 (1962). Finally, when all evidence is examined none is found to support an express waiver of a jury or a waiver implied by the acts and conduct of Duvall’s counsel.

This appears to be a case heard piecemeal over a period of several days, perhaps in the intervals between trial of other cases, the court and parties trying to accommodate each other. The amiable informality of proceedings led court and counsel to infer from each other’s statements and demeanor more than was said or meant, until eventually a misunderstanding of substantial proportions became clear. The trial judge ruled in conformity with his understanding, but the evidentiary record does not support his action. Duvall’s Points of Error 3, 9 and 10 are sustained.

Discussion of other points becomes immaterial and the opinion will not be extended for that purpose. The judgment of the trial court is reversed and the case is remanded for retrial. . The court clerk notified all parties that no volume of the statement of facts labeled Volume 1 had been received. Duvall’s counsel filed an instrument labeled "Appellant’s Explanation of Record” which had attached an affidavit of the court reporter, to-wit: My name is Muriel I. Pearson. I was the Official Court Reporter in Cause 9363, styled "Suzanne Mann Duvall vs. Cletys Sadler, Jeannette Sadler, Philip M.

Sadler and Jacquelyn Sadler", now pending before the Court of Appeals for the 6th Supreme Judicial District in Texarkana, Texas. I generally report criminal cases, and in this case I followed the dictates of Rule 201 of the Rules of Post Trial and Appellate Procedure in Criminal Cases, which requires that the Transcript be designated VOLUME I of the record and the Statement of Facts designated VOLUME II and so forth in sequence. Thus there is no VOLUME I of the Statement of Facts in the Duvall case, and the Statement of Facts is complete in VOLUME II through VOLUME V.