I concur in the dissenting opinion of Mr. Justice Sebring with the further observation that it is not necessary for us to recede from our former decision in order to decide this case unless we hold that review may be had under Rule 34 to the exclusion of a review by Habeas Corpus. We have no right to abrogate the Writ of Habeas Corpus vouchsafed by the fundamental law of the land.
If the majority opinion leaves the two methods of review open then an election has been made and it becomes our duty to decide the case. Especially is this so when the time has, perhaps, expired to afford adequate review by appeal or certiorari.
It is not sufficient to simply say, as in the majority opinion, that "It is not before us in such form as is conducive to a proper review." The fact of the matter is that all the record is here which could be presented by certiorari or appeal: i. e., the pleadings, testimony and orders adverse to petitioner.
BUFORD, J., concurs.