On Rehearing.
Plaintiff in error complains of the statement in the opinion that after verdict plaintiff filed a trial amendment withdrawing all allegations for an accounting, etc.
In the motion for rehearing it is said the court below refused to permit such amendment to be filed. The clerk’s transcript shows the amendment referred to as filed May 29. 1933. It will, therefore, be presumed by this court that it was filed under leave of the court (Haynes v. Rice, 33 Tex. 167) unless the record shows the contrary. The allegation in the motion for new trial in the court below that the court erred in refusing permission to file such amendment is insufficient to overcome the presumption stated.
Nor do we find any bill in the statement of facts to show the court refused to permit the amendment to be filed.
But, however it may be, we regard the matter as immaterial. Whether the trial amendment was or was not considered by the trial court'does not affect our conclusion that the judgment should be affirmed.