ON APPLICATION FOB BEHEABING.
Morrill, C. J.In the application for a rehearing the counsel for appellant state, that the court is mistaken in saying “ that it nowhere appears that the field notes had been examined and recorded and certified to the commissioner of the general land office by the county or district surveyor,” agreeably to the acts. (Art. 4522.)
The counsel refer us to the certificate of the commissioner of the general land office on the ninth page of the record, where this fact is alleged to appear.
The statutes, Article 1427, is explicit in stating the requisites of a petition, one of which is “ a full and clear statement of the cause of action, and such other allegations, pertinent to the cause, as he (the plaintiff) may deem necessary to sustain the suit.”
Papers referred to as evidence cannot be considered as a part of a petition. The statement made by the pleader, that these papers are a part of the petition, does not make them such, because the petition in itself, without any reference aliunde, “ must contain a full and clear statement of the cause of action,” and all “ allegations pertinent to the cause as are deemed necessary to sustain the suit.”
*194In Jennings v. Moss, 4 Tex. 452, and Gray v. Osborne, 24 Tex. 158, this court said that “ the plaintiff must show to the court a good cause of action by appropriate averments in the petition; these averments must be of the facts which constitute the cause of action in the case, and not merely statements of the evidence by which the cause of action, if stated, might be maintained, or of conclusions derived from the evidence.”
We must look to the statements and allegations in the petition to ascertain the cause of action. If all the statements and allegations are admitted by the answer, or if it appears to the court that, by their admission, the plaintiff has no cause of action, it is unnecessary to look to the papers relied on as testimony, because the “ allegata ” must precede the “probata.”
But even if we were at liberty to consider as a part of the petition that portion of the records of the commissioner of the land office to which the petition refers, we should still find the same defect stated in the opinion, since the petition refers only to records for a “ description of the land located,” “ the certificate,” “the date of the survey,” and “ the filing the same in the Land Office,” and does not refer to the Land Office document to show that the county surveyor had done anything with the survey.
The other position taken in the application for a rehearing, to show the error of the court for remanding, we consider well taken. By Article 1562, we are not permitted to remand the cause to the District Court, “ except when it is necessary that some new matter of fact be ascertained, or damages to be assessed, or the matter to be decreed is uncertain.” Since the plaintiff insists that the judgment of the District Court was a final disposition of the case upon both law and facts, aud that the plaintiff, neither in the district or this court, desires to amend his pleadings, the judgment will be so changed and modified as to affirm the judgment of the District Court.
It seemed to us, in preparing the opinion, that a general -exception to the petition was so appropriate, that we felt bound *195to construe the judgment as authorizing the demurrer, particularly as it also appeared that the plaintiff had not made such a full statement of his cause of action as he was able.
Rehearing refused and judgment affirmed.