In the lower court, in an action of trespass to try title involving 60 acres of land in Hardin county, judgment was entered partitioning the land among the plaintiffs and defendants, except defendant Security Realty & Development Company. Neither the plaintiffs by their petition nor any of defendants by their answers claimed any specific portion of the land sued for, nor did any of the litigants pray for partition. The answer of Security Realty & Development Company was by general demurrer and plea of not guilty, and on the trial it did not make an appearance, except by answer theretofore filed. It has prosecuted this appeal by writ of error as against all the other litigants.
Before submission, defendants in error filed their motion to strike the statement of facts. The stenographer prepared a transcript of the evidence, as required by Article 2288, as amended by Acts 42nd Legislature, 1931, First Called Session, p. 75, c. 34, § 2 (Vernon’s Ann. Civ. St. art. 2238). All the defendants indorsed their approval in writing on this transcript of the evidence, but plantiffs refused to agree thereto. It was then presented to the trial judge, who approved the same. Thereupon notice was given to plaintiffs, as required by article 2238, as amended. Plaintiffs filed their objections, and every objection made by them was met by the trial judge, who certified to that fact and again approved the statement of facts. The point presented by the motion to strike is that defendants in error, after the judge had indorsed on the statement of facts his second and final approval, did not refile it with the clerk of the district court, but filed it with the transcript in this court. This proceeding was a mere irregularity of which plaintiff in error cannot complain. Garrison v. Ins. Co. (Tex. Civ. App.) 69 S.W.(2d) 218.
Appellees concede that the judgment of the lower court ordering partition was error ; this concession has support in Keith v. Keith, 39 Tex. Civ. App. 363, 87 S. W. 384, Vanlandingham v. Terry (Tex. Civ. App.) 293 S. W. 252.
The plaintiffs below could recover only on the strength of their own title. The statement of facts shows an outstanding interest owned by a party who was not brought into this litigation. Plaintiffs below were given judgment against appellant for this outstanding interest.
For the two errors discussed, the judgment of the lower court is reversed, and the cause remanded for a new trial.