On Motion for Rehearing.
[9] The first assignment in appellant’s motion for rehearing is:
“Because this honorable court erred in failing and refusing to consider appellant’s first assignment of error,” etc.
We assume that appellant intended to assign that this court erred in “overruling” appellant’s first assignment of error; we “considered” the assignment. Under this assignment—
“appellant asks that he have the privilege of going before the trial judge and having this matter [the deficiency of the record] presented to him in accordance with this court’s opinion, and having the trial judge to approve the bill of exception and have it filed nunc 'pro tunc, and having this record completed on certiorari.”
The apt reply of appellee, in regard to this matter, we quote:
“The appellant’s motion, as a matter of fact, is not that he be granted a writ to bring up any omitted portions of the record in the case, but that he be granted a writ in order that he may go out and make a record and then bring it up.”
[10] Even where there is a record to correct, the general rule is that an application to amend it is too late after the judgment of the Court of Civil Appeals has been rendered in the cause.
Appellant, in addressing himself to the opinion of this court on the question of the judgment, and the agreement found in the transcript, rather suggests the proposition that the certificate of the district clerk to the transcript, and the judgment of the district court, which refers to an agreement upon file by the attorneys, is a showing, equivalent to a statement of facts, that this is the only agreement, and the only record, upon which the final judgment of the district court could have been based. It is not necessary to distinguish a transcript proper, differentiated from a statement of facts and its function; the statutes and the decisions are ample on the subject. The final judgment of the trial court is based upon “evidence,” a part of which is an agreement of counsel filed in the cause at a former term of the court. From Campbell v. Skidmore, 1 Tex. 475, it is continuously held that, where all the facts are not exhibited, the—
“judgment will be presumed to have been duly and rightly rendered, * * * unless the reverse is made to appear; and it is with the appellant to bring before the court such a case as shall counteract this presumption.”
The motion for rehearing is, in all things, overruled.