The opinion
MR. JUSTICE DAVIS:
(concurring specially).
I do not agree that we may look to the affidavits before us to determine whether the defendant’s second bill of exceptions which contains the proceedings had at the trial upon the merits was timely presented, settled and filed. The record there at best is equivocal; the attorney general’s present objection to our consideration of this bill is on its face good. If however the fact be as the defendant’s counsel contend that this bill was in truth presented in time, then the record in this court should be withdrawn and returned to the lower court for recertification by its clerk to show that fact before we take up the merits. We should enter an order to that effect. The affidavit of the deputy clerk filed here, which contradicts the certified record, is ineffectual to amend that record.
Since however a majority of my associates are of a contrary view, I necessarily acquiesce in what is therefore the decision of the court upon the point, and accordingly turn to the merits. There, upon the premise that the merits are properly brought before us by the two bills of exceptions which we have in the record, I concur in the reversal of the judgment of the district court, and as well in the reasons therefor which Mr. Justice Angstman gives in his opinion.