On Application for Rehearing.
Howell, J.In refusing the application for a rehearing in this case, we deem it proper to say that from inadvertence the motion to dismiss the appeal submitted with the case on its merits, was not formally passed on, and we consider it totally unnecessary to open the judgment in order to dispose of it, as none of the grounds on which it is based have any foundation in law or fact.
As to the first and second grounds it is sufficient to say that the appeal was taken on motion, and the certificate of the clerk is in due form, and hence no citation nor assignment of errors is necessary; the exceptions on which the judgment appealed from was rendered present the questions on which the opinion of this court was sought.
The third and fourth grounds are not well taken for reasons assigned on the motion to dismiss in the case of Fish v. Collens, not yet reported.
As to the fifth ground, it is immaterial whether the reasons at length given by the. judge for his decree are copied in one part or another of the record. They seem to have been the reasons for a judgment in another case, and the entry made in this case referred to them as the reasons for the judgment herein, and they are in the transcript.
Rehearing refused.