Concurring Opinion.
Fenner, J.That the second appeal was wrongly filed under the number of a former appeal does not admit of doubt. That error absolves the appellee from the penalty of not making his motion to dismiss in *928time, because sucli filing gave him no notice that the appeal had been brought up.
But, on the other hand, the fault of such erroneous filing is not, in my opinion, to be visited on the appellant, in absence of proof that he directed the same. It must be treated as an error of the clerk. I look at the case precisely as if the transcript had been filed as a new appeal under an independent number.
Regarding it in this Light, I find a transcript containing nothing but proceedings subsequent to the judgment appealed from, and a certificate exposing its incompleteness and making no reference to any former transcript on file in this Court, or to any other source from which the incompleteness could be supplemented.
In the Vredenburg case, 32 Ann. 5(11, we held that where a second transcript of appeal contained a certificate that it, together with other transcripts already on file here and properly identified, contained all the proceedings had, etc., in the ease, we would consider the first as part of the second transcript of appeal, and would not dismiss the appeal.
But we are now asked to go further, and, without any reference to a former transcript in the new certificate, to hunt it ñp ourselves and embody it as part of the new transcript.
This is utterly inadmissible and justified by no law, authority or practice.
Appreciating the hardship of the instant case, I am compelled to apply to it, as to all others, uniform rules.
For these reasons I concur in the decree, since it is the same, in effect, as a dismissal of the appeal.