Opinion by
Judge O’Rearon petition for rehearing.
With the petition for rehearing appellee offers to file an omitted part of the record, viz, an order of the lower court of July 9, 1904, granting an appeal in this case. The supersedeas bond was executed on August 5, 1904. A previous appeal had been granted by the. lower court April 9, 1904; but, as was held in the former opinion herein (87 S. W., 812, 27 Ky. Law Rep., 1059), appellant’s subsequent motion for a new trial was an abandonment of that appeal. The transcript of the record was not filed in this court till March 21, 1905. Appellee’s motion to dismiss the appeals granted below was overruled, as is shown by the former opinion, because the record disclosed that but one appeal, viz, that of April 9, 1904, had been granted; and, as it was abandoned as above shown, there was no appeal pending but the one granted in this court March 21, 1905. In discussing the effect of the appeal granted April 9, 1904, subsequently abandoned, and the effect of the supersedeas and bond, this court said: “The appeal bond was executed after the motion for a new trial was overruled, and was no *635doubt executed under the idea that an appeal had been granted by the circuit court. But as no appeal was then granted and as the appeal which was granted on April 9th bad been abandoned, the appeal bond and supersedeas are void.” By the additional part of the record now offered to be filed by appellee with bis petition for rehearing, it does appear that an appeal bad been granted when the supersedeas bond was executed and the supersedeas issued, other than the one of April 9th, to-wit, the one of July 9th. If that fact bad been made to appear, it is manifest from the language of the court in the opinion that our conclusion would have been otherwise.
The question is, will the court on a petition for rehearing allow the record to be perfected, so as to change the result? In a number of cases it has been decided that after submission the court will not allow the record to be extended, and that, where the appellant has lost upon an imperfect record the court will not on rehearing permit the record to be changed and the case retried. (Stanford v. Parker, 15 S. W., 784, 16 S. W., 268, 12 Ky. Law Rep., 878; Christopher v. Searcy, 12 Bush, 171; Yeager v. Groves, 78 Ky., 278; Martin v. Royse, 54 S. W., 177, 21 Ky. Law Rep., 1353.) This rule, though, has been confined to appellant in its application; for it is the appellant generally who files the record here, and it is obviously a safe rule that prohibits bis speculating upon the result of the court’s action by presenting incomplete transcripts. He dogs so at bis peril. On the other band, we have held in a number of cases that the rule does not apply in its rigor to the appellee, who does not bring up the record. We are speaking of those cases in which the complete record is required to be brought *636up. In Doty v. Trustees of Berea College, 15 S. W., 1063, 16 S. W., 268, 12 Ky. Law Rep., 964, and Long v. Kerrigan, 16 S. W., 708, 17 S. W., 441, 13 Ky. Law Rep., 433, the appellees were allowed to bring in omitted portions of the record after judgment here, where the incomplete transcript had been filed by the appellants, and rehearings were granted thereon. In the case at bar the transcript filed by appellant was apparently complete, and was so certified to by the clerk of the circuit court. Doubtless it was believed by the clerk and by appellant’s counsel that it was so. Under the circumstances appellee’s counsel might well have relied on the verity of the clerk’s certificate. This court so relied on it, and we are all in error as to the fact. Now, what is the remedy? It occurs to us that substantial justice is to allow the record to be perfected, to preserve the rights of the parties- on the merits -of the case, whatever they may be. But, in view of the mispraetice of the ease, we allow this additional transcript to be filed on terms that the supersedeas issued below be allowed to stand and abide the final result of the court’s action on the merits of the case. The expression in the former opinion that “the appeal bond and supersedeas are void” is withdrawn.
The motion to dismiss the appeal is overruled. The motion to file additional transcript is sustained.