On Motion for Rehearing.
Appellee assigns as error our failure to remand the cause for another trial, the contention being that a fraud was practiced by appellant in the procuring of the loan, and in support of this theory many facts not disclosed by the record are shown by affidavit attached to the motion.
[5, 6] This court is bound,by the record as it appears in the transcript and statement of facts, and the extraneous matters shown in the affidavit attached to the motion cannot be considered. This is too well settled to require the citation of authorities. In addition, the facts set up, if they could be considered, have no bearing on the cause of action alleged in plaintiff’s petition. That cause of action is simply a suit upon a promissory note, and no cause of action for fraud is attempted to be asserted. There is no issue of fact to be tried over as to the cause of action alleged in the petition. Our judgment in favor of appellant is based upon the fact that Mrs. Mills was a married woman at the time the original note was given and at the time the note sued on was given, and it is apparent from the evidence that the debt incurred by her and evidenced by the notes sued on was not incurred for any purpose such as would warrant a recovery against her under our statutes. The evidence has been fully developed on the issues made by the pleadings, and it became our duty under the statute, upon reversing the judgment, to render such judgment as the trial court should have rendered. The purpose for which the remanding of the cause for another trial is sought is to amend the pleadings by alleging matters relied on to show fraud on the part of appellant in the procurement of the money. If an amendment, sufficient to show fraud, should be filed, it would, of course, present a new cause of action. Lumber Co. v. Water Co., 94 Tex. 456, 61 S. W. 707; Railway v. Bracht, 157 S. W. 269.
[7] We recognize the rule that when a cause of action has been defectively or insufficiently pleaded, and exceptions thereto are sustained in the appellate court, it is proper to remand the cause in order to give an opportunity to amend, as such opportunity would have existed had the trial court sustained the exceptions; but no case can be found, we are confident, in which it has been held proper to remand a cause in order that a new cause of action may be pleaded. We have heretofore held that a case should not be remanded for such purpose. Bonzer v. Garrett, 162 S. W. 934. See, also, Gregory v. Montgomery, 23 Tex. Civ. App. 68, 56 S. W. 231; Michigan Loan Ass’n v. Atterbury, 16 Tex. Civ. App. 222, 42 S. W. 569; Floyd v. Bankers’ Life Ass’n, 192 S. W. 611; Texas Hide & Wool Co. v. Edwards, 185 S. W. 887; Tillman v. Erp, 121 S. W. 547.
• The motion is overruled.