This court is one with none other than appellate jurisdiction, and the causes before it must be decided upon the record made in the lower court. It is not contemplated in the statutes that affidavits of facts not in the record should be entertained by this court, or should in anywise shape or affect its decision. There are affidavits filed in support of the motion for rehearing setting up agreements that were made in regard to the testimony in the lower court. Whatever agreements there may have been between the parties can have no bearing upon the decisions of this court, unless they are a part of the record. Section 24 of the Act to organize the Courts of Civil Appeals provides, that "In all cases of appeal or writ of error to the Court of Civil Appeals, the trial shall be on a statement of facts or agreed statement of the pleadings and proof, as agreed upon by the parties or their attorneys, or the conclusions of law and fact, as the case may be, certified to by the judge of the court below; or should the parties fail to agree, then the judge of the court below shall certify the facts; or on a bill of exceptions to the opinion of the judge; or on a special verdict; or on an error in law, either assigned or apparent on the face of the record; and in the absence of all these, the case shall be dismissed with costs alone, or with costs and damages, at the discretion of the court." The only provision made in the law for affidavits is in the case of bills of exceptions where the trial judge refuses to sign them, and it is expressly required in connection with these, that they must "be contained in and form a part of the record transmitted to the Court of Civil Appeals." There is no statute or rule of practice permitting the filing of affidavits amendatory of the facts or explanatory of the failure to produce certain testimony in the court below. There is nothing in the record to indicate that appellees were misled by any agreement in regard to the evidence, and the affidavits in support of motion for rehearing can not be entertained by us. While permissible, under our practice motions for new trials are not required in order to appeal, where the case is tried without the intervention of a jury. Whatever may be the practice in other States, this is the settled practice in Texas.
The motion for rehearing is overruled.
Motion overruled. *Page 677