(dissenting) — I concur in the result reached by my brethren in the foregoing opinion. I dissent, however, from its seeming holding that the statement of facts must be stricken solely because of its being defectively certified by the trial judge. Our *78statute prescribing the manner of certifying statements of facts (Rem. Comp. Stat., § 391), reads:
“The judge shall certify that the matters and proceedings embodied in the bill or statement, as the case may be, are matters and proceedings occurring in the cause and that the same are thereby made a part of the record therein; and, when such is the fact, he shall further certify that the same contains all the material facts, matters and proceedings heretofore occurring in the cause and not already a part of the record therein, or (as the case may be) such thereof as the parties have agreed to be all that are material therein. . . .”
I have italicized the words I desire particularly noticed. The trial judge’s certificate here in question means in substance exactly the same as these italicized words of the statute. The foregoing opinion seems to hold that such a certificate is defective within itself, and calls for the striking of such a certified statement of facts for no other reason than that it is so certified. It is quite beyond me to comprehend why a statement so certified should be stricken for that sole reason, when the statute expressly provides that it may be so certified. We have decisions, among which are those cited in the foregoing opinion, which, read superficially, seem to express such a view of the law; but I think, when critically read in the light of the particular circumstances of each case, they do not so hold. Of course, when a statement of facts is so certified, this court will not be able to review many questions that might be urged in the case which it could review under a statement of facts certified as containing all the material facts, etc. But I think, manifestly, there may be questions capable of being reviewed under a statement of facts certified as prescribed by these italicized words of the statute. I agree that the statement of facts in this case should be ignored, not because of
*79want of proper certification, but because it does not contain facts wbicb enable us to review tbe particular errors relied upon by counsel for appellant. I feel impelled to make these observations because I fear that we are drifting towards a judicial repeal of the first paragraph of the above quoted statute.