(dissenting).
In the majority opinion, reference is made to the abstract of record of proceedings had before the referee, and it is said: “We do not and cannot know *543that the proceedings described in the abstract actually occurred.”
Both parties in the briefs have made arguments based on the transcript which includes the abstract specified. Neither party raised the point on which the opinion was based. The point took its origin from the bench without suggestion from or reference to either party, and in the face of extended argument and voluminous briefs based upon the statement of evidence contained in the abstract.
In Sommer v. Rotary Lift Co. (C.C.A.9) 66 F.(2d) 809, in an equity appeal, there was no statement of evidence whatever, yet the court ordered the submission to be vacated, and a supplemental transcript to be filed containing a statement of the evidence. I think that we might well follow Sommer v. Rotary Lift Co., supra, and thereby avoid a diversity of decisions even in our own circuit.
I adhere to my former opinion, that the omission of authentication should be corrected, and therefore dissent from the majority opinion denying the petition for rehearing.