On Motion for Rehearing.
In their motion for rehearing plaintiffs in error attack our finding that the record of the trial below failed to show that they, had, prior to judgment there, admitted liability to Ñaman on the policies sued upon, had paid his claim in full, and had received from him an assignment of his claim against the carriers, citing pages 134, 135, of the transcript on file in this court as showing the contrary; the instrument thus appearing in the transcript purports to be an acknowledgment of such a payment and transfer executed on April 17, 1922, whereas the judgment in this cause was rendered in the trial court on October 18, 1921, and motion for new trial overruled thereon November 12, 1921. Obviously, in such circumstances, this court may not look to the paper thus injected more than five months after final action by the trial court into the transcript upon the appeal as properly reflecting any part of the proceedings below.
In this same connection it is further insisted that we erted in holding that the insurance companies, not having paid any part of Naman’s loss at the time of judgment in the trial court, were not entitled to be then actually put into his shoes as concerned the two railroads on their subrogation claim, for the reason that, notwithstanding they had not then so paid, they were entitled to a conditional decree of subrogation against the carriers, effective whenever they might thereafter file with the clerk of the trial court proper evidence of payment on their part of Naman’s recovery against them.
No such case was either adversely acted upon below or properly presented for reconsideration here; as our original opinion recites, they stood there until final judgment upon their denial of any liability to and refusal to pay Ñaman anything, and when the trial court, on a finding from the uncontro-verted evidence that they had not up to that time paid him anything, denied generally their subrogation claims against the railways, they simply appealed the case as so made to this court, merely conplaining to that court of such denial upon the ground thus stated in their motion for new trial:
“Eor that each of the said insurance companies was shown to be entitled, upon payment, to subrogation to the rights of the plaintiff N. D. Ñaman against the said railway companies.”
The italics are our own, emphasizing the correctness of our former conclusion that they • did ground their right to subrogation upon their first paying the loss.
It goes without saying that the issues upon appeal may not be enlarged by the mere citation as facts of matters wholly dehors the record.
In any event, however, the question of an equitable assignment becomes immaterial under our other conclusion that the railway companies had completed their contract of carriage.
The motion for rehearing has been given careful consideration, but under the view *289that our former disposition of the cause was correct, it has been overruled.
Overruled.