ON REHEARING.
We are not satisfied from what is advanced in the motion for rehearing-to modify the former opinion in this case. There was not an absence of a statement of facts. Certain documents were called for in the statement, as prepared, agreed upon by the parties, and approved by the judge, to be copied by the clerk, which was carried out by the clerk in violation of the rule governing such statements. While the case was in the Supreme Court appellee moved on that ground to strike out the entire statement-of facts, or in the alternative to strike out the portions so improperly copied therein.
The court struck out only those portions, and we can regard this only as a refusal to treat the entire statement as void, which they should have done, and doubtless would, if the statement as it remained after striking out said portions was not entitled to be considered.
We do not regard our views as contrary to what is held in Johnson v. Railway, 69 Texas, 641. In that case there was a partial statement of the evidence only, and the court considered it, and concluded that it showed that the judgment appealed from was sustained thereby, and affirmed the same. In the present case it appears from those portions of the statement not stricken out that the court was not justified in rendering judgment for appellee; and while we should not render judgment when all the facts upon which the case was tried below are not clearly before us, we should not, with a statement of facts before us, affirm the judgment contrary thereto. The above case of Johnson v. Railway is not the only authority there is for considering the evidence. Railway v. Lane, 79 Texas, 643.
The motion is overruled.
Motion overruled.