ON MOTION FOR REHEARING
The original opinion, dated April 27, 1993, as amended by insertion of a few clarifying words, is adopted. The Bank’s Points of Error 3 and 5 in its motion for rehearing warrant discussion and will be considered together. The points are in this language:
POINT OF ERROR NO. 3
Because the trial court entered judgment in favor of the Bank against McLaughlin, the trial court found that the Bank did not dismiss its claims against McLaughlin, which finding cannot be overturned on appeal unless the alleged dismissal of McLaughlin is established as a matter of law, which it was not.
POINT OF ERROR NO. 5
By holding that the Bank’s claims were dismissed based solely on the acts of the trial judge and the Defendant’s counsel, without any notice to the Bank or knowledge by the Bank, this Court has erred and denied the Bank of its rights to due process of law and equal protection of the law.
The formal bill of exceptions, quoted in substantial detail in the original opinion, states as a fact that McLaughlin, Collum and Collins were dropped from the lawsuit but that such action was not noted in the statement of facts. The bill of exceptions was submitted to counsel for McLaughlin in accordance with Tex.R.App.P. 52(c)(5). The trial judge certified that both he and the Bank’s counsel found the bill to be correct and ordered it filed as a part of the record. It affirmatively appears that counsel was afforded an opportunity to object to the bill, to demand correction of the bill, if counsel considered it incorrect, and to develop for the record facts showing McLaughlin was not dismissed by the parties, if the Bank chose to insist that dismissal did not occur. Instead of an objection, counsel for the Bank agreed to the factual statement in the bill that McLaughlin was dismissed as a party to the lawsuit.
The record of proceedings in the trial court show as a matter of law that McLaughlin was dismissed as a party to the lawsuit. The Bank’s motion for rehearing is overruled.