There is no statement of facts or bill of exceptions. The error complained of is presented only by an affidavit, alleging surprise on account of some of the evidence adduced on the trial, filed for the purpose of obtaining a new trial.
The importance of that testimony cannot be determined in the absence of a statement of facts. If we are to presume that every thing was proved which was susceptible of legal proof, the case may have been fully made out, by other evidence than that by which the party was surprised. (Walling v. Kinnard, 10 Tex. R. 512 ; Hart. Dig., Art. 2930.)
After the writ of error had been perfected, and the transcript had been delivered to plaintiff in error, the defendant in error filed a remittitur, as to the sureties on the certiorari bond, for the amount of the judgment exceeding their bond. This was too late to have any effect upon the cost of the case. The judgment will be reversed and reformed as to the sureties, and affirmed as to principal.
Reversed and reformed.