*822Dissenting Opinion.
Fenner:, J.There can be no doubt that, under the clerk’s certificate as appended to the record, and without reference to the extraneous affidavits filed in support of the motion to dismiss, the appellant would, be fully protected against the penalty of dismissal on account of the incompleteness of the record.
Those affidavits, though tending to impute the defects to the fault of appellant’s counsel, are contradicted by the counter-affidavit of the latter, which, being in accord with the clerk’s official certificate, should in my judgment prevail.
Far from being in fault, I am satisfied that the attorney of appellant has exerted unusual labor and diligence to secure the timely and proper bringing up of his appeal. The defects which exist wére susceptible of easy remedy, were not, in my opinion, attributable to his fault, and should not defeat his appeal.
I, therefore, dissent.
Todd, J., concurs in this opinion. Bermudez, C. J., and Justices Manning and Houston concur in refusing the rehearing asked in this case. Justices Todd and Fenner dissent, and think that the rehearing 0 should be granted.