'It seems to be the settled law in Texas that if the pleadings are still open for action on exceptions, they are equally open for amendments thereto. Goodrich v. Bell, Tex.Civ.App., 62 S.W.2d 199; Jago v. Indemnity Ins. Co., 120 Tex. 204, 36 S.W.2d 980; Smith v. Hood, Tex.Civ.App., 143 S.W.2d 646; Andrade v. Donnelly, Tex.Civ.App., 70 S.W.2d 256. ' Other elements of surprise would have to come from the contents of the proffered amendment, and it is difficult to see how there could be the required 'showing' of surprise without an examination of the amendment itself.

It seems to be the settled law in Texas that if the pleadings are still open for action on exceptions, they are equally open for amendments thereto. Goodrich v. Bell, Tex.Civ.App., 62 S.W.2d 199; Jago v. Indemnity Ins. Co., 120 Tex. 204, 36 S.W.2d 980; Smith v. Hood, Tex.Civ.App., 143 S.W.2d 646; Andrade v. Donnelly, Tex.Civ.App., 70 S.W.2d 256. The Contestants in the case at bar immediately after the trial court had sustained exceptions to their petition, asked leave of the court to file an amended petition which would cure the defects pointed out in the exception.

The record in the original cause is not before us and therefore we can not give any consideration thereto. Andrade v. Donnelly, Tex. Civ. App. 70 S.W.2d 256, par. 4. We are not otherwise enlightened as to what fact, if any, was shown by the record which, in the opinion of the trial court, so contradicted the allegations of the petition as to render same subject to a general demurrer, except the recitation in the judgment herein that plaintiff failed "to take any action with reference to its original suit until more than six months after said cause had been dismissed on the court's own motion for want of prosecution * * *."