Appellant files a motion for re-hearing in which it is suggested that the qualification of the trial judge to the bill of exception complaining of the denial of continuance was not justified by the record. In connection with the motion for rehearing application for certiorari is also presented for the purpose of bringing before this court the application for process for the absent witnesses and also the statement of facts developed on hearing of the motion for new trial. Copy of the application for process and the statement of facts mentioned are attached to the application for certiorari and they will be considered by us in passing upon this motion. The affidavit of the clerk so far as it undertakes to deal with the question as to whether process for the absent witnesses had been returned into court is a matter which can not be considered, it being an effort here to amend or change the record made in the trial court. If appellant had desired to make an issue of that matter it should have been done upon hearing of the motion for new trial.
Appellant's criticism of the qualification of the trial judge to the bill of exception mentioned might have found some support in the record if he himself had not brought before us the facts which were developed upon the hearing of the motion for new trial. It is disclosed from this statement of facts that the judge made a statement upon the hearing of the motion which is incorporated as a part of the statement of facts; from this statement the conclusion must be drawn that the process for those witnesses was before the judge at the time he was making the statement, for in it he says that as to one absent witness the sheriff's return showed that he was in Louisiana and that the other two could not be found at the addresses given in the application for process. If appellant objected to this statement on the part of the judge he should have made it known at the time and called for the return on the process itself as being the best evidence. As the record appears here the judge's statement made upon the hearing of the motion fully justified his qualification upon the *Page 86 bill of exception; to this qualification there appears to have been no objection urged by appellant.
We can not say from the record that the judge was in error in denying the continuance for lack of diligence. Therefore the motion for rehearing must be overruled.
Overruled.