In a motion for rehearing in this case appellant attaches to his motion the affidavit of Hon. W.B. Powell, District Judge, dated June 17, 1912, that the pauper's oath was presented to him and approved by him after the adjournment of court, but it nowhere appears that the stenographer was ever given notice that the court had entered an order requiring him to deliver the statement of facts to appellant, and there is no such order in the record. There is also the affidavit of the stenographer attached to the motion that on March 15th he sent the statement of facts to a bank at Woodville, with draft attached, and that he thereafter on March 19th left the State and was gone until May 15th. The endorsement on the transcript shows it was made up and delivered to appellant's counsel on March 5th — fourteen days before the stenographer says he left the State. Appellant's counsel then knew on March 5th that the record contained no statement of facts, yet they made no effort to obtain same until after the stenographer had left the State, fourteen days later. In addition to this appellant must be aware that the bank was holding the statement of facts as agent for the stenographer, and even if the stenographer had left the State, upon a proper application to the court, the court would have compelled the delivery of the statement of facts by the bank, if appellant had taken all necessary steps to entitle him to one without paying therefor.
We can not consider the affidavits attached to the motion for rehearing, alleging that since the case was appealed and the judgment of affirmance rendered there has been newly discovered evidence come to the knowledge of defendant. The record in a case is made in the trial court, and we can not consider matters not brought to the attention of that court.
The motion for rehearing is overruled.
Overruled.