(on rehearing). Our attention is again called to the fact that we took no notice in the original opinion of the suggestion of appellee that appellant had not complied with rule 9 in reference to abstracting the pleadings. It is urgently insisted that ap-pellee is entitled to an affirmance of the decree of the chancery court because appellant failed to abstract any of the pleadings, in keeping with the rule, and omitted entirely to abstract appellee’s answer and demurrer to appellant’s bill. The purpose of the rule invoked is to get the issues presented in the trial court clearly before this court. This purpose was accomplished by appellee supplying all the evidence necessary, omitted from appellant’s abstract, to place the cas.e fairly before this court. The reason we did not refer in the original opinion to this insistence of appellee was because it was stated by appellee that he would “make such additional abstract of the testimony as will place the case fairly before the court.” Appellee did this in such way that the real issue in the case became apparent and enabled this court, with the issue thus defined, to determine the ease upon its merits.
Appellee suggested in his original brief that the transcript did not contain all the evidence heard by the trial court, and insisted then, and strenuously insists now, that he was entitled to an affirmance of the decree under the well-known presumption that the evidence omitted was sufficient to sustain the decree. On motion for rehearing, appellee supports his suggestion that evidence heard in the trial was omitted from the transcript by filing affidavits to that effect. These affidavits add nothing to the original suggestion, because incorrect or incomplete transcripts can not be corrected by affidavit. Memphis Land & Timber Co. v. Bd. Dir. of St. Francis Levee Dist., 70 Ark. 409. The presumption must be indulged that a transcript of a case filed in this court contains a true and perfect copy of the record, if properly certified by the clerk. Upon the suggestion that the record in this ease was incomplete, we examined the certificate of the clerk and the decree of the court. That part of the clerk’s certificate relating to the evidence incorporated in the transcript is that the “foregoing record contains all testimony on file in my office, in the cases,” properly styling them. The contention is made that the certificate is insufficient because it «ays that the evidence on file in the clerk’s office is the evidence incorporated in the transcript. This is the only evidence that could be incorporated in the transcript. It would be improper to incorporate in the transcript evidence not appearing in the record of the case. This certificate is therefore complete, unless there was a conflict between the certificate and the decree of the court. Certificates in substantial conformity with, this certificate were held to he complete in the cases of Turpin v. Beach, 88 Ark. 604, and Kampman v. Kampmam, 98 Ark. 328. This court is committed to the doctrine that where there is a conflict between the decree of the court and the certificate of the clerk, as to the evidence upon which the case was heard, the decree will control. Weaver-Dowdy Co. v. Brewer, 129 Ark. 193. In the instant case, the decree of the court recites that the case was heard upon the “proofs.” The proofs upon which the case was heard, according to the decree, may have been the identical proofs incorporated in the transcript and certified by the clerk. There is not necessarily any conflict between the decree of the court and the certificate of the clerk, so the transcript on its face is complete. This court ruled, in case of Turpin v. Beach, supra, that, where the decree recited that the cause was heard upon “the depositions of three witnesses, and other evidence,” and no other evidence appeared in the transcript except exhibits that were attached to the three depositions, no conflict existed between the decree of the court and the certificate of the clerk, for the reason that the words, “and other evidence,” could be construed as relating to the exhibits.
As the transcript in this case on its face is complete, and oral evidence was heard in the trial court, not incorporated in the transcript, appellee was privileged to suggest a diminution of the record and to request time to obtain a nunc pro tunc order showing that the case was heard upon oral evidence not incorporated in the transcript. After obtaining a correction of the record to that effect, then he would have been entitled to an affirmance of the decree, unless appellant, upon request, had been able to complete the record by bringing the oral evidence into the transcript by proper proceedings.
After a thorough consideration of the other grounds suggested in the motion for rehearing, we adhere t'o the conclusions reached as announced in the former opinion.
Mr. Justice Hart dissents.