On Motion for Rehearing.
On October 15, 1911, judgment was rendered in this cause by this court, reversing the cause and rendering same for appellants. It is now before us on a motion for rehearing, based principally on the conditions that: (1) This court erred in holding that the trial court had based its judgment on the pleadings of the parties alone, and without the consideration of other evidence than was attached to the pleadings, as shown by the transcript; and (2) that this- court erred in resting in part its judgment on exhibits which the transcript showed to be attached to appellants’ motion to dissolve the injunction filed in the trial court.
[7] We are aware of the general rule that judgments on the merits of a controversy will not be reversed by an appellate court in the absence of a statement of facts; but we think the judgment of the trial court shows that the controversy was disposed of by him on a consideration of the pleadings and exhibits attached alone.
[8] In -view of the fact that the act of *8081907 (Acts 30th Leg. c. 107) authorizes appellate courts to dispose of appeals from injunction orders on the pleadings, and “such affidavits and evidence as may have been admitted by the judge granting or dissolving said injunction,” if there could be any question as to whether or not the trial court acted upon evidence, other than the pleadings the burden should rest on the party claiming that evidence was introduced, other than as shown by the transcript.
In this case, however, it was stated in the oral argument of the case before this court by appellants’ counsel that the trial court granted the order on the pleadings and exhibits attached alone, and the correctness of this statement was not challenged by appellee; nor does he yet contend that any evidence was considered by the trial court.
It is true that in the original opinion this court did refer to certain exhibits which were attached to appellants’ motion to dissolve the injunction, and which were filed after the order granting injunction had been entered by the trial court. We call attention, however, to the fact that appellee brought these matters before this court in support of his contention that appellants had waived their right to an appeal by filing same, and, having considered exhibits attached to said motion in disposing of said issue, through inadvertence, such exhibits were referred to as one of the reasons supporting the judgment rendered.
[9] We are fully aware of the fact that this court should dispose of the case on the record as it existed at the time the trial court entered its order, and it would therefore be improper to base our judgment upon the contents of a motion that was filed to dissolve the order after the order appealed from had been entered.
We think, however, under section 168 of the act of 1905, p. 263, the schools of the Chillicothe independent school district, and the superintendent thereof, were as completely under the control of the trustees, within reasonable limits, as they could have been under the copy of the rules which this court mentioned in its former opinion.
As it is made to appear from appellants’ pleadings that they seek to repudiate appel-lee’s rights under the contract, because of conduct on his part, arising after the state board of education had disposed of the matter it had before it, and as appellee apparently has resorted to a court for relief against said action on the part of the trustees, without having first resorted to the proper school officers for relief against such action on the part of the trustees, it would appear that appellee could have no standing in court. See Harkness v. Hutcherson, 90 Tex. 383, 38 S. W. 1120, and McCollum v. Adams, 110 S. W. 526.
Believing that under the record the ap-pellee, by his conduct, had placed himself in such position as to deprive him of a right to appeal to a court of equity for relief, even if he had a right to resort to a court in the first instance, the motion for rehearing will be overruled.