On Appellants’ Motions for Rehearing.
With her motion for rehearing appellant has presented to us duly certified copies of the order of the Thirty-Seventh district court of Bexar, county which set aside the judgment nisi and discharged appellant and her sureties on said bond, together with a nunc 'pro tunc order of date May 1, 1928, directing that same be recorded in the minutes of said court, and also the clerk’s certificate showing that said orders and judgment have been so duly entered and recorded in said court. She *953now asks that, based upon this evidence now before us, we reverse and render judgment in her favor.
It is true that said decree setting aside the judgment nisi is incontestable and in its nature a criminal proceeding in which the state is not entitled to a new trial nor to an appeal. Article 440, Code Cr. Proc.; Perry v. State, 14 Tex. App. 166; Robertson v. State, 14 Tex. App. 211. However, it is now well established that Courts of Civil Appeals can, under articles 1822 and 1856, R. S. 1925, consider affidavits, or proof de hors the record, only in so far as same affect their jurisdiction. Ennis Mer. Co. v. Wathen, 93 Tex. 623, 57 S. W. 946; Hamilton v. Eiland (Tex. Civ. App.) 181 S. W. 260. The certified copies now before us were not before the trial court when it rendered its judgment herein, and were not considered by it. Had same been in evidence in the trial court, and in the statement of facts,' we would render judgment here for appellant; and though the same result may be obtained by reversing and remanding this case with instructions to the trial court, the wisdom of the rule which forbids appellate courts from usurping the powers of the trial court and rendering a judgment on evidence not before the trial court is obvious.
In view of what we have said, under the conclusions reached, and that this litigation may be finally disposed of, our former judgment herein is modified to this extent: That this cause be reversed and remanded, with instructions to the trial court that upon appellant’s offering in evidence duly certified copies of the nunc pro tune order of May 1,1928, of the Thirty-Seventh district court of Bexar county, and of the judgment of that court setting aside the judgment nisi made on the 15th day of May, 1926, but not then recorded, the trial court thereupon render judgment for appellant against Bexar county for the sum of $6,000, and against the other appel-lees for the remainder of said $7,500 sued for, less the amounts adjudged against appellant in said judgment of the Thirty-Seventh district court setting aside said judgment nisi.
Judgment modified.