The respondents seek by motion to have stricken from the transcript and files of this court in the above cause the testimony, exhibits and documentary evidence accompanying such transcript, assigning as grounds therefor: (1) That such testimony, documentary evidence and exhibits were not identified by the trial judge rendering the decree, as the law requires; (2) that such testimony, etc., are not certified as required by rule.l of this court; and (3) that there appears to be incorporated with such testimony the evidence of witnesses, including documents and exhibits, which was never given or admitted at the trial of the cause. The respondents also seek by a further motion, filed at the1 same time, to have stricken from the transcript a stipulation, entered into' between' counsel .for the parties, touching certain evidence it was desired’to have admitted.m .the,cause. ........ ...... ;■
*2411. Referring to the first motion, the statute provides that “when an equity cause has gone to a final decree, the judge of the court rendering the decree shall, within ten days after the entry of the decree, by a proper certificate, identify all the evidence in the case, whether consisting of the testimony of the witnesses, documentary evidence or exhibits”: B. & C. Comp. § 827. We have not regarded this statute as mandatory (Osgood v. Osgood, 35 Or. 6: 56 Pac. 1017), and, there appearing to be some confusion touching the evidence, exhibits and documents proper to be brought to this court with the transcript, the motion will be allowed, with permission to the appellant to apply to the trial judge for the proper certificate respecting such testimony, etc., and for this sixty days’ time will be given. The certificate of the clerk can also.be obtained within the time, if deemed important.
2. As it pertains to the third ground, it will require an extended survey of all the evidence brought here, which is very voluminous, to determine what is proper and what is not. Hence it is deemed advisable, the cause being in equity, to leave the matter unsettled until the same is heard upon its merits.
3. Referring to the further motion, we are unable to determine with the information before us touching the propriety of striking out such stipulations. Hence this matter will also be postponed until the final hearing of the cause, with leave to renew the motion then.
The order will be entered in accordance with this opinion. Motion Allowed in Part.