On Motion for Rehearing
The certificate in this case did not attempt to make all corrections necessary in the brief of evidence by inserting them in the certificate or by reference to an approved part of the record, assuming even that such a thing could be done under decisions cited in the opinion, but indicated some deficiencies by mere reference to a conditionally approved brief of the evidence, and the facts of this case do not bring it within the rule that this court can treat as surplusage the additional matter added by the trial judge to his purported certificate. Neither did the certificate require to be sent to this court approved parts of the record which were not specified in the bill of exceptions. These facts render inapplicable the rulings in Crumley v. Hall, 202 Ga. 588 (43 S. E. 2d 646); Harris v. Lumpkin, 136 Ga. 47 (70 S. E. 869); Scott v. Whipple, 116 Ga. 211 (42 S. E. 519).
Moreover, in order for this court to consider the merits of the plaintiffs’ petition for mandamus, (96 Ga. App. 685), supra, this court necessarily was required to find, in accordance with their contentions, that the bill of exceptions was conditionally certified, for the reason that if the certificate had been unconditional the trial court was without jurisdiction to sign another certificate, and the case would have been filable in this court on the unconditional certificate already signed. The plaintiffs have now re*81versed the position which they solemnly took in judicio, and under which they prevailed in obtaining a ruling on the merits of their petition for mandamus, and they are now estopped to contend that the present certificate is unconditional. Bennett v. Bennett, 210 Ga. 721 (82 S. E. 2d 653) and cases cited; Code (Ann.) § 38-114, catchword “Position.”
Motion for rehearing denied.