On Motion for Rehearing.'
In the original opinion mention was made that at the time of the introduction of the account in evidence, which, with the items specified therein, constituted in the main the basis of the suit, appellant made no objection to its introduction, and in a well-considered and ingenious argument upon its motion, ' in attempting to bridge this particular lapse, it says that the trial court admitted, the account for the purpose of proving the assignment to the appellee bank, “and as the account sued on, and not for the purpose of proving the individual items within itself or as a whole,” and refers us to the stenographer’s notes, p. 86, for the court’s action, and to the objections really made by it to the account at that time, and argues that being true, our given reason, overruling the particular objection, fails.
[7] Stenographer’s notes of 142 pages (the statement of facts being 45 pages), purxoorting to be (and no doubt is) the detailed proceedings of the trial, have been sent up with the record. The clerk very properly omitted to file the same, and, under the statute and rules, it, of course, is an uneonsidered document by us. We confess we have “looked in” and find appellant’s statement substantiated; but we are unable to assist it, as the consideration of an ex parte document to the extent of basing a review upon same would of course be highly improper. The brief does not advert to a bill of exceptions, embodying objections to the account at the time of its introduction; and upon a reconsideration of the record, and the other objection to the testimony of the witness Darby when testifying to the items contained in the account, in view of the general objection made to the items of the account that the books would be the better testimony, when the witness clearly evinced an independent recollection of some of the transactions, the contention will have to be overruled.
[8] The operative effect sustaining such an objection would have stricken the whole testimony from the record, when some of it was clearly admissible; and the failure of, the record to show an objection to the whole account embodying the same items, when actually introduced, is in the nature of a waiver of the insufficient objection previously made to the items contained therein.