On Appellee’s Motion for Rehearing.
The motion contains eight specifications of error, the substance of which is embodied in the following paragraph: In the first place, the relief granted should not be other than that prayed for (assertedly only to change the custody to the parents and not to set aside the judgment of delinquency). In the second place the appellate court should indulge every reasonable presumption in favor of the action of the trial court.
As to the first: the petition clearly sought a reopening of the case both on the issue of delinquency and proper custody. Its opening paragraph requested the court to reopen the case for the reasons that followed. These, the substance of which is set out in full in our original opinion, set up grounds: (1) for setting the judgment aside; (2) showing the child was not a delinquent; and (3) showing that the parents were the proper custodians. The prayer specifically asked that the cause be reopened, “and after hearing the order committing said child be revoked or modified and that the petitioners have judgment and order that said child be given to the custody of petitioners, and for any other relief that the court may deem right and proper.” It would be not only an extremely strained and technical construction of the petition, but one wholly unwarranted, to give it the interpretation that petitioners were seeking only the change of custody from the convent to the parents, and not also to have the delinquency judgment set aside. The trial court’s order overruling the petition refers to it only as one to “reopen the cause.”
The general rule announced in the second ground is of course correct. We did “indulge every reasonable presumption in favor of the action of the trial court.” The right of appeal means the right to have the action of the trial court reviewed upon the record thereof certified to the appellate court; and imports the corresponding duty upon the appellate court to accord such review, fairly and impartially, in the light of such record, and such record only. The motion states: “It is unfortunate that the agreed statement of facts filed in this case does not contain a full and complete statement of the testimony as brdught out at both hearings regarding the history of the delinquency of this child over a period of several years prior to February 6, 1947, but it is believed that the instrument, denominated the agreed statement of facts, sufficiently discloses that the trial court gave consideration to the case history on file in the office of the Probation Officer of Bexar County to require the Appellate Court, un*655der the rule that if there is any evidence of probative force to support the findings of the trial court, to leave the same undisturbed, or to require a supplemental finding of fact or an agreed statement of facts to include all facts considered in the case by the trial court. Such facts would show, regardless of the sworn petition of Appellants, that the mother, Eliza Reyna, requested on February 6, 1947, that the Juvenile Court commit the said Elvira A. Reyna to the custody of the Convent of the Good Shepherd.”
The agreed statement of facts was signed on behalf of the State by Assistant Criminal District Attorney W. Jay Johnson, who also signed the petition upon which the proceeding was based. This statement, after setting out the facts detailed in our original opinion, reads:
“These are the facts at the trial of Elvira Reyna, February 6th, 1947, as above stated, and also that Eliza Reyna, the mother of Elvira Reyna was present at said trial but did not testify at the trial and it is admitted that she does not speak nor understand the English language and Elvira was not represented by an attorney at the trial.
“Fourth: On the 27th day of February, A.D. 1947, at a regular session of said Court, functioning without any person present officially designated Clerk of said Court, the petition of Elvira Reyna, by and with her next friends Matías Reyna and his wife, Eliza Reyna, parents of Elvira Reyna, duly verified, was presented to the Honorable Charles W. Anderson, Judge of said Court, who after having heard said petition read and the argument of counsel for the petitioners, and after having heard the Honorable Eunice E. Whitaker, Assistant Probation Officer, and the Honorable W. Jay Johnson, Assistant Criminal District Attorney, reading from the records of the case showed that the mother of Elvira Reyna was present in Juvenile Court when Elvira was presented to the County Judge for hearing.
“Fifth: The Court immediately overruled said petition and order to reopen said cause, without further hearing or evidence being adduced, whereupon the attorney for the petitioners duly excepted to the ruling of the Court.”
The concluding paragraph reads: “We agree that the above and -foregoing two pages contain a full, true and correct statement of all the facts admitted in evidence by the court upon the trial of this cause, and we further agree that this record shall be filed as the statement of facts in this cause.”
The statement not only does not disclose “that the trial court gave consideration to the case history on file in the office of the Probation Officer,” but negatives the consideration of anything in the original hearing except the facts detailed in our original opinion, and the showing on hearing of the motion that the mother was in court at the original trial but did not testify (she was there under subpoena as a witness for the State), and it was admitted “that she does not speak nor understand the English language.” There was no traverse of the verified petition to reopen the case. The order overruling it expressly refers to it as one “requesting said court to reopen said cause,” and negatives any hearing other than that “the court having heard said petition read, and the argument of counsel.” The record does not show that any case record existed in the probation office, nor (if there were such record) what it showed. It negatives the introduction or consideration, in the original trial and in the hearing of the petition to reopen, of any such record. Nor is there any suggestion anywhere in the record that the court had before it any evidence regarding fitness of the parents as custodians of the child. Nor is there any intimation in the record supporting the assertion in the motion that on February 6, 1947, the mother requested the judge to commit the child to the convent. The record affirmatively shows that the- court declined to reopen the case upon the sole showing that the mother was present at the trial and did not testify.
We are asked in the face of this record to affirm the judgment under the presumption that the court had before it (and properly so) evidence warranting the judgment of delinquency and that the parents were not proper custodians of the child; also, that their rights were fully protected in the procedure shown by the record. Under such presumption the right *656of review of the trial court’s action would be of little if any value.
The suggestion in the motion that this court require supplemental findings of fact or an agreed statement of facts (there is already an agreed statement of facts in the record), would be tantamount to this court’s doing what the petition to reopen requested and the trial court refused to do, —that is reopen the entire case. That is exactly the effect of our judgment remanding for a new trial on all issues. It may be conceded that in a proper case, at a proper time and under authorized procedure the statement of facts may be amended. See Rule 428, Texas Rules of Civil Procedure. No such case is presented here.
The motion is overruled.
Overruled.