On Motion for Rehearing.
This case was tried in the court below upon an agreed statement which was evidently filed under the provisions of article 2177. The caption to the statement is as follows: “The parties in the above entitled and numbered cause agree that the following is a statement of facts upon which judgment in the above entitled and numbered cause was rendered on the - day of March, 1931, the controversy therein having been submitted to the Court upon same as such agreed statement of facts.”
By their motion for rehearing, the appellees insist that we should have construed the will in every particular, because the pleadings show a dispute as to the title to the property and. that we erred in holding that the evidence as shown by the statement of facts does not support the judgment, for the reason that, in the absence of anything in the record to the contrary, the judgment of the court is presumed to be correct and supported by' sufficient evidence, and they cite the case of Haines v. Bankers’ Petroleujp & Refining Co. (Tex. Civ. App.) 273 S. W. 940, in support of the contention. That case was not presented’ to the lower court as an agreed ease,- but there was an agreed statement of facts filed in the Court of Appeals.- The learned judge rendering the opinion cites no. authorities to sustain; his holding.
When a case is tried in the court below upon an agreed statement, aijid upon’ appeal such statement constitutes the state-, ment of facts here, both courts are limited to' the facts as agreed to. The only • material questions- are those presented by the state-’*1047ment (Parker v. Portis, 14 Tex. 166), and the inquiry may not extend beyond its terms, so long as it is valid and is not rescinded (Ætna Life Insurance Co. v. Smith (Tex. Civ. App.) 293 S. W. 243). In such case the court is confined to the facts contained in the statement, and may not make an additional finding, and none should be presumed. Texas Mexican Railway Co. v. Scott, 60 Tex. Civ. App. 482, 129 S. W. 1170. The pleadings filed in the case tried under that article of the statute are immaterial and will be disregarded where the case is submitted on questions of law arising on the agreed statement. Chappell v. McIntyre, 9 Tex. 161. The court is without authority to make .any finding not embraced in or conforming to the agreed statement or to draw any inference not necessarily compelled as a matter of law. Hutcherson v. Sovereign Camp, 112 Tex. 551, 251 S. W. 491, 28 A. L. R. 823; Hafale v. Canfield Mfg. Co. (Tex. Civ. App.) 268 S. W. 986; Lucas v. Patton, 49 Tex. Civ. App. 62, 107 S. W. 1143.
The district judge before whom the case was tried appended the following certificate to the statement:
“The above and foregoing agreed statement of facts is hereby certified to be correct in open court by the undersigned judge before whom said case was tried and it is further certified that said case was tried upon said agreed statement of facts alone and this certificate is the action of said court.
“This the 2nd day of April, A. D. 1931.”
The appeal must be determined upon the agreed statement without presumptions as to further evidence. Fisher’s Heirs v. Leisweitz, 1 Posey, Unrep. Cas. 330; North River Insurance Co. v. Hipsher (Tex. Civ. App.) 280 S. W. 328; Smith v. Nesbitt (Tex. Civ. App.) 235 S. W. 1104; Fuller v. Cameron (Tex. Civ. App.) 209 S. W. 711; Chickasha Milling Co., v. Crutcher (Tex. Civ. App.) 141 S. W. 355; Eastland v. Williams’ Estate (Tex. Civ. App.) 45 S. W. 412.
The correctness of the statement cannot be questioned after the case has been appealed (Long v. City National Bank [Tex. Civ. App.] 256 S. W. 1006), and the- court will consider only such matters as are incorporated into the statement (McDowell v. Fowler, 80 Tex. 587, 16 S. W. 431), and will overrule assignments involving questions not raised or embraced in the agreed case (Eastland v. Williams’ Estate, supra). It is held that the admission of evidence in addition to the agreed statement, over the objections of the adverse party, constitutes reversible error when such evidence is made a basis for the findings and judgment. Ætna Life Insurance Co. v. Smith, supra; 2 Tex. Jur. 664-667.
Under these authorities, we cannot presume anything in support of the court’s judgment, and the motion for rehearing is overruled.