On Motion for Rehearing.
Defendants in error have filed an able and elaborate motion for rehearing, insisting that the court erred, among other things, in sustaining the plea in abatement, suggesting, as a reason therefor,- that it appeared by affidavit of counsel for plaintiff in error that the Galveston case had' been dismissed prior to the rendition of judgment in the Milam county case. This affidavit, however, being no part of the record, cannot be considered by us for any purpose, but the case must be adjudicated upon the record as presented by the transcript.
It is likewise urged that this court erred in holding that the trial court passed upon the issues presented by the plaintiff in error’s plea of privilege and abatement. This matter, we think, is conclusively settled against his contention by the recitals of the judgment, wherein it appears that the court passed on the law questions presented by such pleas, determining them against the contention of plaintiff in error.
Since the judgment rendered was on a new cause of action, not set up in the original pleadings, of which the plaintiff in error is not shown by the record to have notice, either constructively or otherwise, and since it does not appear that plaintiff in error was either personally present in court or by attorney at the time of the trial, such judgment is for this reason assailable, and should be set aside in direct proceedings for this purpose.
After a most careful consideration of the entire motion, we are inclined to- think that it is not well taken, for which reason it should be overruled, and it is therefore so ordered.
Motion overruled.