On Petition for Rehearing.
Bruce, J.On the rehearing in this case, we have carefully reviewed the evidence in regard to the $380 and the $650 items. We now are of the opinion that the contention of the appellant in regard to these transactions should be sustained. We find, indeed, that the testimony of the defendant Williams is quite strongly corroborated by that of Laura Boring, Henry Boring, and Fulton I. Kaufman. This testimony we cannot ignore in examining the record as we now do, and are compelled by the statute to do on a trial de novo, and without the chance or ' opportunity of watching the demeanor of the witnesses upon the stand, *8and of forming an estimate as to their honesty except as it appears upon the printed record.
Our faith, too, in the judgment of the trial court in the present case, is much shaken by the disclosure of the record that he was called away at the beginning of the taking of the testimony, and only heard that which was most disadvantageous to the appellant, the testimony as a whole being merely read to him by the stenographer.
We now therefore credit the appellant with the two items of $380 and $650 and the interest thereon, and decree the land to be subject to a lien of $2,010.22, with interest thereon at 7 per cent per annum from the 30th day of November, 1910, instead of $818, as heretofore decreed by us, and of $723.18, as decreed by the trial court. If this sum is not paid within thirty days from the handing down of the remittitur herein, a sale of the property may be enforced under special execution. The costs of this appeal will be borne by plaintiff and respondent.