On petition for a rehearing.
Biddle, J.In this case, a certiorari was granted June 17th, 1879, on motion of the appellee, to bring up a com*101píete record. Upon the affidavit of Commodore Clemans, counsel for appellants, this certiorari was set aside. On the 27th day of May, 1880, an affidavit and motion on behalf of appellee were filed for another certiorari to complete the record. Service of this affidavit and motion was acknowledged by Commodore Clemans on the 24th day of May, 1880, as attorney of appellants. On the 4th day of June, 1880, Commodore Clemans appeared in this court, as attorney for the appellants, by filing' the affidavits of J. L. Douglass and Maggie Douglass, resisting the certiorari. Upon a full hearing and consideration, the certiorari was granted on the 15th day of June, 1880, to which the clerk below made return on the 22d day of June, 1880, as stated in the opinion, which return was filed in this court on the 25th day of. June, 1880. The cause was decided on the 24th day of September, 1880.
In the face of this record, Commodore Clemans uses the following language, in his petition for a rehearing :
“ The court decided this case upon an ex parte affidavit made by one of the counsel for appellee, filed in this court; it was set forth, as ~we are informed in an affidavit, that the ruling of the court below upon the demurrer was waived orally by appellants’ counsel. * * * * And, as for the affidavit made in this court, it was made without us having an opportunity to see it in the hands of the judge, where we had no right to it.”
The case was not decided “ upon an ex parte affidavit made by one of the counsel for the appellee.” It was decided upon the amended record, duly certified to this court. The counsel below appeared to the motion to amend the record, and resisted it, and had his right of appeal, if he had desired to take it. The record shows that the counsel for appellant had been permitted to take the note which was filed as an exhibit, from the files, for a purpose of his own; that its absence in his hands, *102from the files, was the reason, why a copy of it was not in the first transcript brought to this court.
Original opinion filed at May term, 1880. Opinion on petition for a rehearing filed at November term, 1880.He did not appeal from the action of the court in correcting the record, and no such question is presented in the case.
The counsel had an opportunity to see the affidavit in this court, for a certiorari. He had full notice of the affidavit and motion, which was acknowledged over his own signature. He did see the affidavit and motion, appeared and resisted them, as stated. All of this is matter of record.
It seems to us that the counsel has fallen into a serious error, in thus mistaking the record, and the grounds of the decision, of this court, and in forgetting his own acts, which are a part of the record. We think the judgment is right. The petition for a rehearing is therefore overruled.