(concurring .specially). I could not agree with my colleagues upon the merits of this case. I do, however, concur in the affirmance of the order and judgment appealed from because of the fact that, under the holdings of this court in State v. McCallum, 23 S. D. 528, 122 N. W. 586, Rogers v. Penobscot Mining Co., 26 S. D. 52, 127 N. W. 471, Donahoe v. Adebar, 34 S. D. 471, 149 N. W. 175, and Lytle v. McGruder, 36 S. D. 506, 155 N. W. 771, there is no printed record before us which we are warranted in considering. The defects in appellant’s printed record were noted in respondent’s brief, and appellant has not sought to file a new brief. Under such circumstances, there remains nothing for us to do but to affirm the lower court.