On Motion for Rehearing.
In his motion for rehearing the appellant complains that in its original opinion this court erred (1) “in making a finding that ‘points eight through eleven * * * are not insisted upon by’ the appellant,” (2) “in denying appellant’s motion, duly verified, to supplement the record by bringing up to the Court of Civil Appeals all of the arguments of counsel to the jury,” (3) “in finding that if the trial court committed error in the respects charged by the appellant ‘such errors do not require a reversal of the trial court’s judgment,’ ” and (4) in holding that the errors charged by appellant “could have had no bearing on the issues with reference to whether in doing or failing to do certain things in the circumstances that actually existed the plaintiff was himself guilty of negligence which proximately caused his injuries.”
The first assignment has reference to the following statement in the original opinion: “ * * * but as we understand the brief and the record, points eight through eleven are recognized by appellant as being without proper support in the record, and are not insisted upon by him.”
Without debating the question of whether certain statements contained in appellant’s brief and made by counsel during oral argument justified the conclusion! which is evidenced by the quoted lan- ■ guage, we now hold that appellant’s points-eight through eleven are without proper support in the record and cannot be considered on their merits. The points pertain to what are represented to have been rulings of the trial court whereby appellant’s counsel were unduly and improperly restricted, it is claimed, in their arguments to the jury. The alleged rulings have’ not been presented by bills of exception, and do not appear in the record except as contained in appellant’s amended motion for a new trial. It does not appear that any evidence was adduced in support of the motion for-new trial. The court’s order 1 overruling the motion made no special mention of the assignments pertaining to rulings on the arguments of counsel; it merely overruled the motion generally. The order can in no sense be construed as a certificate by the trial court that the rulings assigned as error were actually made,. nor has the trial court elsewhere certified that such rulings were made. In the absence of proof of record in some manner sanctioned by law and the rules of procedure that the rulings as claimed were in fact made, the. assignments are not and have not been subject to be reviewed by us. See Rule 372, T.R.C.P.; 3-A Tex.Jur. 628, 642, 698, secs. 488, 489, 498, 542; Texas.Employers’ Ins. Ass’n v. Tate, Tex.Civ.App., 214 S.W.2d 877, 882, writ ref. n. r. e.; Hartford Accident & Indemnity Co. v. Ethridge, Tex.Civ.App., 149 S.W.2d 1040; Associated Employers Lloyds v. Wynn, Tex.Civ.App., 230 S.W.2d 838. This is true even though the rulings, if made, may have been of such nature as to'entitle the appellant to complain of them for the first time in his motion for a new trial. It is also true notwithstanding the assignments complain of what are represented to have been rulings of *234the trial court, as distinguished from mere improper argument of opposing counsel.
We next consider appellant’s assignment that this court erred in refusing to grant his motion to have the record supplemented by a transcript of all arguments made to the jury by counsel for both parties.
The motion, which was sworn to by one of appellant’s attorneys, was filed on September 10, 1953. The transcript and statement of facts had been therefore filed on August 12, 1953, the time for such filing having been first extended by an order of this court for a period of thirty days from July 13, 1953. The motion represented, and it contained a copy of a letter to support the representation, that counsel for appellant had timely directed the official court reporter who reported the trial to incorporate all arguments to the jury in the statement of facts. The arguments were not so incorporated, and the motion represented that appellant’s counsel failed to detect the omission until after the statement of facts had been approved and filed. No transcript of the arguments of counsel was tendered with the motion and none has since been tendered for filing in this court. Neither, so far as the record discloses, has such a transcript been filed or tendered for filing in the trial court. The motion prayed that the official court reporter of the trial court be ordered by this court “to transcribe and file with the clerk of the [trial court] her transcription of all arguments to the jury of all members of counsel for both parties to this suit,” and that the clerk of the trial court be ordered “to certify and transmit to the clerk of the Court of Civil Appeals * * * all of said arguments of counsel.” The motion was contested by the appellee. By order dated September 23, 1953, this court, without setting out its reasons for so doing, overruled the motion.
Disregarding the fact that the time for filing bills of exception in the trial court had long since expired when the motion under discussion was filed; and wholly aside from the question of whether, on the ex-parte motion of one of the parties to an appeal, an appellate court has the authority under Rule 428, T.R.C.P., to order a court reporter who has reported a trial in the trial court to transcribe his or her notes of the trial proceedings and file the transcript in the trial court, and the question of whether if they do possess such authority the appellant’s motion in this instance was technically sufficient to invoke the exercise of it: for this court to have ordered the record supplemented as prayed would have been for it to order the doing of a futile thing. The transcript of the arguments and of the trial court’s rulings in respect thereto, authenticated in no other manner than by the certificate of the official court reporter, which is the only authentication an order of the kind sought could well have contemplated, would not have been entitled to consideration either as a bill of exception or as a part of the statement of facts; and the reviewing court still would not have been at liberty to pass upon such rulings as might have been reflected by it. Hartford Accident & Indemnity Co. v. Ethridge, supra, 149 S.W.2d 1040; Associated Employers Lloyds v. Wynn, supra, 230 S.W.2d 838. See, also, Smith v. United Gas Pipe Line Co., 149 Tex. 69, 228 S.W.2d 139, 143. By contesting the appellant’s motion, the appellee had registered its lack of consent to the proposed method of presenting the matters for review; and the fact alone that the order sought would not have aided either the appellant or this court is considered a sufficient reason for the court’s having refused to grant appellant’s motion.
While we feel that the original opinion makes sufficiently clear the fact that points eight through eleven in appellant’s brief were not considered on their merits and were not taken into consideration by the court in disposing of the appeal, arguments advanced by appellant under the third and fourth assignments in his motion for rehearing leads,us to state here that neither the enumerated points nor the assignments of error on which they were based were taken into consideration in disposing of *235the appeal. Therefore, the statement, “Assuming, without deciding, that the trial court erred in each of the respects charged, such errors do not require a reversal of the trial court’s judgment,” which appears in the original opinion, was intended to have reference only to the seven points which were considered by the court, the points which pertained to the exclusion of evidence. It had no reference to any of the trial court’s rulings on argument to the jury by counsel. Other expressions in the original opinion similar to the italicized portion of the quoted sentence, if there be such, are subject to the same construction and limitation. With this explanation we adhere to the views expressed in the original opinion.
The appellant’s motion for rehearing is overruled.