On motion for rehearing.
Philips, P. J.A rehearing is asked in this case chiefly on the ground that the opinion states that the *572instruction given for plaintiff was predicated of the fact “ that the instruments contained some provision for the payment of an additional per cent, on the principal sum.” It is claimed in the motion for rehearing that the court had no right to consider the instructions given on behalf of plaintiff, (1) for the reason that appellant had not set the same out in his abstract of the record. This is not correct. The abstract does set out the first instruction given by the court on behalf of plaintiff, which expressly told the jury, if they found the issues for the plaintiff, they would find “the amount of principal1 and interest of the first note sued on, and for ten per cent, of the amount due on said first count as attorney’s fees, on the second count, third count, and fourth count * * * ten per cent, of the amount due * * * as attorney’s fees.” But the appellant, by mistake in his abstract, assigns this instruction to the lot given by the court of its own motion. But, says respondent, in the motion for rehearing, this fact could only be ascertained by reference to the transcript, and this court has held that it will not look to the transcript, outside of the abstract furnished by appellant. The application of this rule to the facts of this case is an entire misapprehension of its scope and true intent. Necessarily, it has its exceptions, so obvious that there is no ground for any intelligent misunderstanding of it. If the parties themselves are not agreed as to whether the abstract correctly represents the state of the record, we must look to the transcript to determine this disagreement. Nor does the rule for printing an abstract require, in the matter of instructions, that it should be in so many words stated that the party then and there duly excepted to the giving or refusal of instructions. Where the appellant gives the instruction in his abstract complained of, and assigns error thereon, we assume that he duly saved exceptions thereto. If this was not done, we assume that the opposite side will make such point in their brief. If no such objection be *573made by opposite counsel, we treat the case as if the exceptions were timely taken. The appellant in this case presents the instructions in his abstract as having been given by the court of its own motion. The respondent, to escape the [manifest error on the face of one or more of these instructions, makes the point, at the hearing, and in his brief, that the appellant saved no exceptions thereto in his motion for new trial. This compelled a reference to the transcript to ascertain the real fact. This developed the fact that the first instruction credited to the court, sua sponte, was asked by the plaintiff, which was covered by the motion for new trial. And where the fact is thus brought to the attention and knowledge of the court, it would be trifling with the administration of justice to deny the appellant the-benefit of the objection merely because in his abstract he had inadvertently credited the instruction to the court’s motion.
The motion for rehearing is denied.
All concur.