CONCURRING OPINION BY
GALBRAITH, J.I concur in tbe conclusion, but not in all of tbe reasons given therefor by tbe Chief Justice in tbe above decision. It seems to me that tbe question presented by tbe exception to tbe order *282of the Circuit Court dismissing appellant’s appeal is clearly one of law, and not of judicial discretion.
The discretion theory carries with it the idea that there are no fixed rules of law or questions of strict right involved. To me, it seems that these are the only questions presented. When the appeal was perfected the appellant was entitled, as an absolute right under the law, to a new trial de novo. He also had a right to demand that the appellee prove a cause of action against him. The order dismissing his appeal was a denial of these rights. An error of law, and nothing more.