dissenting.
This case was dismissed because of the defective certificate of the clerk to the .transcript of record, in accordance with precedents established by this court long before I came here.
Although I have been inclined heretofore to recognize the force of these precedents, this practice of dismissing writs of error in this way has never been satisfactory to me, and I have hoped that the court could see its way clear to adopt a different practice. This was my attitude when the application for reinstatement was denied in case of Akin et al. v. Margan et al. at June Term, A. D. 1905, and further consideration of this question and the effect of this practice has convinced me of the wisdom of the procedure which ought to govern me now, and which I think should be adopted by this court.
My opinion is that instead of dismissing the writ of error absolutely because of a defective certification when the case was taken up by the court for final disposition, the better practice would have been to have made an order that the submission of the case be set aside, and that the plaintiff in error be permitted to append to the transcript a certificate in the form prescribed by the rules serving a copy upon defendant in error within say ten days, and that upon failure to comply with the order the writ of error be dismissed. See Martin v. Hudson, 79 Cal. 612, 21 Pac. Rep. 1135.
As was said by the Supreme Court of the United States in Idaho & Oregon Land Imp. Co. v. Bradbury, 132 U. S. 509, text 513, 10 Sup. Ct. Rep. 177, on a motion to dismiss an appeal, “the question presented is not one of no authentication, but of irregular, or imperfect authentication, not of jurisdiction, but of practice. It is, there*269fore, within the discretion of this court to allow the defect to be supplied.” See also Ray v. Trice, 48 Fla. 297, 37 South. 582.
I am in favor of allowing the plaintiff in error to append to the transcript a certificate in the form prescribed by the rules, as he has promptly asked leave to do. The motion of the plaintiff in error should be granted.