ON PETITION FOR REHEARING.
A petition for a rehearing in this case having been presented, it becomes necessary, by reason of the matters therein brought to our attention, to add to what we have already said. It is urged upon us that we have placed a wrong construction upon the findings of the trial court. We cannot so view it. The court found that Jones was short in his accounts’ as trustee in the sum of $2,492.89. It also found that the value of his services as such trustee was the sum of $1,492.89, leaving a net shortage of $1,000, for which judgment was entered. It necessarily follows that, except as to- this amount of shortage, the accounts of the trustee were correct. He had not otherwise been delinquent,- — there was no other “delinquency;” and when the court, in its findings skid, “Any delinquency arising being the result of accident, error, and misadventure in the conduct of the business,” the language necessarily referred to this particular shortage for which judgment was rendered. There was nothing else, to which it could refer. We are now informed that objection was made to the incorporation of this matter in the finding. It was argued before the trial court, and its incorporation was advisedly made. We are further informed by this application for a rehearing that counsel for respondent were well advised before the convening of this term of this court that appellant would insist upon’ *553the construction of the findings that this court places thereon. Yet counsel rested content with the findings as they stood, and did not place respondent in any condition to obtain relief therefrom. But it is now urged that the court below did not so intend to find, and we are asked to remand the record for correction.- Even if counsel have not, by laches, lost the right to urge this matter, we cannot grant it. Under Sup. Ct. Rule No. 33 (74 N. W. xii) we may remand a record when there is a defective return; that is, we may remand a record, as prescribed in the rule, to have it corrected to correspond with the record which was in fact made in the court below. Further than this our decisions have never gone. See opinion on rehearing in Moore v. Booker, 4 N. D. 554, 62 N. W. Rep. 607; Coulter v. Railway Co., 5 N. D. 568, 67 N. W. Rep. 1046; Baumer v. French, 8 N. D. 325, 79 N. W. Rep. 340. These cases show that this court will not remand a record for the purpose of having any matter inserted therein that does not appear in the record of the lower court as it stood when the appeal was taken, unless proceedings that were actually had in the lower court, and by inadvertence omitted from the record. But it is conceded that the record in this court entirely corresponds with the existing record in the trial court, and that such record was advisedly made. It is obvious that the real purpose is to have this court remand the record and reinvest the jurisdiction of the District Court, to the end that such court may make new findings that will support the judgment ordered. We know of no authority or practice in this state that will permit us so to do. The petition for a rehearing is denied. But inadvertently the order heretofore made in the case was too broad. We ordered the action dismissed. That was a mistake. The decree provided for things other than the recovery of the $1,000, and as to such other matters no appeal was taken. Our former order is vacated, and the lower court is directed to modify its decree by omitting therefrom the judgment for $1,000, and as thus modified the decree will stand. Appellant will recover costs in this court. Modified and affirmed.
(84 N. W. Rep. 479.)