I dissent. At the time the original decision in this case was rendered I was of the opinion, as expressed in my separate opinion then delivered, that the record contains sufficient evidence to enable this court to proceed and determine the only controversy involved here, under the provisions of section 21 of the Code of Civil Procedure, as amended *244by an Act of tbe Second Extraordinary Session of tbe Eighth Legislative Assembly, approved December 10, 1903. I am still of that opinion, and therefore do not agree with the majority of the court in the disposition which should be made of this case.