On Rehearing.
J. R. Peel & W. S. Billups, for plaintiffs in error, cited Bouv. L. D., Bill of Exc.; 1 Texas, 102, 414; 5 Texas, 290; Sayles’ Prac., 346; 16 Texas, 133, Baker v. Johnson; 16 Texas, 243, Boatright v. Linam; 11 Texas, 149, Robinson v. Martel; 6 Texas, 406; 13 Texas, 368; 14 Texas, 662; 15 Texas, 437; 17 Texas, 625; 22 Texas, 114; 28 Texas, 112; 17 Texas, 47; 16 Texas, 13; 14 Texas, 583; 11 Texas, 557; 10 Texas, 33; 4 Texas, 488; 2 Wend., 145; 13 Johns., 301; 2 Texas, 405; 1 Texas, 529; 16 Johns., 343.
Baker & Maxcy and N. Hart Davis, for defendant in error, cited 16 Texas, 93, Campion v. Angier; 17 Texas, 157, Parker v. McKelvain; 25 Texas, 53, Harrison v. Cotton; 31 Texas, 500, Cocker v. The State; 32 Texas, 640, Cotton v. The State; Paschal’s Digest, 217, 219; 31 Texas, 651, Harrison v. Harwood; Drake on Att., Secs. 156, 182; 8 B. Mon., 52, Petit & Owens v. Mercer; 7 Ala., 622, Kirksey v. Jones; 11 Ala., 492, McCulloch v. Walter; Paschal’s Digest, 1591.
. Moore, Associate Justice. — If any errors occurred in the proceedings had in this cause in the District Court, they are not presented in the record in a manner to warrant this court in noticing or correcting them.
The first ground alleged in the assignment of errors for a reversal of the judgment is the overruling of an appli*378cation for a continuance. But as the record does not show that any exception was taken by plaintiffs in error to the ruling, and as it has been often announced in the written opinions of the court, and in many oral decisions since the case of Campion v. Angier, 16 Texas, 93, this court cannot consider and pass upon the action of the court which we are asked by this assignment of - error to. review.
It is insisted that a bill of exceptions is unnecessary, because the matter complained of is shown by the copy of the affidavit for a continuance, copied into the transcript, and by the judgment entry, in which the action of the court upon the application is disclosed. This is certainly no answer to the objection of the defendant in error, that the court should not notice the question sought to be raised by this assignment. It is the duty and province of this court to consider only, such errors as arise out of or are presented by the record. Evidently the mere copying of an affidavit for a continuance into the transcript does not incorporate it in, or constitute it a part of, the record. The only error which its presence in this unauthorized manner in the transcript requires ns to notice is the gross impropriety of putting in the record copies of papers which form no part thereof, which has often been animadverted upon by the court, we regret to say without having as yet corrected the abuse.
If parties desire to have this court review the action of the District Court in refusing an application for a continuance, it is their duty to incorporate the ruling of the court and tlieir exception taken at the time into the record by a bill of exception. A departure from this well established rule is forbidden alike by principle and policy, for when the bill of exceptions is presented to the judge, he has an opportunity, before ordering its incorporation into the record of the case, not only to see that nothing improper is stated in "the bill, but he-may also have all the facts *379stated, and, if he desire it, matters of explanation which induced the ruling to which exception is taken.
The recitation in the minutes of the court on the application for continuance does not supply the place of the bill of exceptions. It forms no part of the judgment of. the court in the cause. It is but the recital of facts transpiring during the progress of the trial, of which no record was required to be made. But even if the recital in. the entry can be made to supply the place of the bill of exceptions, which we are not called upon now to decide, unquestionably it would have to show the fact that the ruling of the court on the application was excepted to, which is not done in this case.
The second error assigned is the overruling of the motion for a new trial. The grounds of motion for a new trial are, first, overruling application for a continuance; second, the verdict of the jury was contrary to the charge given by the court; third, the verdict is contrary to the evidence. The first has already been disposed of .;. and there being no statement of facts in the record, we can, consequently, take no notice of the other two. Bor have they been insisted upon in argument by the counsel for plaintiffs in error. It is urged, however, that the judgment should be reversed, because of the refusal of' the court to admit evidence in support of their plea in re-convention. The ruling of the court in this particular is-not complained of in the assignment of errors. This court may, no doubt, in some instances consider errors manifestly apparent upon the record which go to the foundation of the action or defense, but we do not think there is anything in this case, as shown by the present record, which calls for the application of this rule.
There being no errors shown by the record in this case,. which have been assigned by the plaintiffs in error, the-judgment is affirmed.
Affirmed.