ON PETITION EOR RE-HEARING.
Hoyt, J.In the petition for re-hearing filed in this cause our attention is called to the fact that in our former opinion there was nothing said as to the motion of respondents to strike the statement of facts from the record and dismiss the appeal. Such omission was an inadvertence on the part of the judge who wrote the opinion. The court had arrived at the conclusion that the motion should be denied, and thereupon entered upon an investigation of the merits, and having come to a conclusion in regard thereto assigned the case, and the one to whom it was assigned proceeded at once to a consideration of the case upon the merits, overlooking the fact that a motion had been interposed. On that account we will here briefly state our reasons for denying such motion.
This court has frequently held that it will not dismiss an appeal or affirm a judgment on account of a defect in the appeal bond until the defect had been adjudged and an opportunity to amend given to appellant. If the bond in question is defective, its insufficiency could not be taken advantage of in the manner disclosed by the record.
The other branch of the motion grows out of the fact that the errors not originally a part of the record were made a part thereof by a paper entitled a bill of exceptions, and that this being so the statute applicable to the settlement of a bill of exceptions must apply to the making *391thereof a part of the record, and not that relating to the settlement of a statement of facts. The record discloses that the original notice was for the settlement of a statement of facts and a bill of exceptions, and the statement prepared and filed at the time such notice was given was so entitled, and we think that such notice and statement were sufficient to authorize the court to proceed as for the settlement of a statement of facts, and that that right was not taken away by reason of the fact that, at the suggestion of the court, in the final form to which the exceptions were reduced the paper was entitled and settled simply as a bill of exceptions. This would not be so if the certificate of the judge was not broad enough to make it a good certificate to a statement of facts, but it was thus broad.
The petition for re-hearing raises no new questions as to the merits of the case, and we do not deem it necessary to add anything to what was said in regard thereto.
Petition denied.
Dunbar, C. J., and Stiles, Anders and Scott, JJ., concur.