The suit was by the plaintiffs in error, husband and wife, against the defendant in error in trespass to try the title to 130 acres of land, and for rent of the same, and for damages for timber removed from the land. The defendant in error pleaded not guilty and set up title to the land under the three, five, and ten years' statutes of limitations. The plaintiffs in error by supplemental petition pleaded affirmatively the five and ten years' statute of limitations, and, by way of answer, estoppel of the defendant in error to set up claim of any interest in the land. *Page 771

There was trial of the case on the merits, and the court peremptorily instructed the jury to return a verdict in favor of the defendant in error. Judgment was accordingly entered affirmatively decreeing title to the land to be in the defendant, and denying to the plaintiff in error recovery of any interest in the land. The plaintiff in error timely prosecuted a writ of error.

A statement of the facts, although tendered, was not filed in the appellate court because not signed and approved by the trial judge. For that reason we cannot consider the statement of facts in passing on the appeal. Magee v. Magee (Tex.Civ.App.) 272 S.W. 252. The assignments of error relate to the admissibility of evidence and to the sufficiency of the evidence to sustain the judgment. In the absence of a statement of facts, we cannot say there was reversible error in not submitting the case to the jury, and in not admitting the particular evidence in the trial.

The judgment is affirmed.