¶1I am not in accord with the view that this appeal should be dismissed. I think the counteraffidavit of the respondent is sufficiently referred to and identified in that part of the order of the court quoted in the majority opinion so that it may be included in the transcript certified by the clerk and considered by us. No claim is made that there was any other affidavit on the subject involved filed or presented to the court. There is a copy of an affidavit of the plaintiff (respondent) attached to a motion and a copy of an affidavit of the defendant (appellant) in response in the certified transcript, and it seems to me that, if the language of the order of the court, "and having read the affidavits of the plaintiff and the defendant, and having examined the records of said cause and the records of the *724 court," is such that it can be said the motion and affidavit is sufficiently referred to in the order, it must then also follow that sufficient reference is made to the affidavit of the other party in response and relating to the same subject.
¶2The motion to dismiss the appeal is based upon the assertion that the affidavits in question are not included in the statement of facts. The alternative referred to in the majority opinion is not raised or discussed in respondent's brief. And, while it is proper for this court to raise the question of its own motion, inasmuch as it involves the jurisdiction of the court, I believe both affidavits are so referred to in the order of the court as to entitle them to consideration. This would require that the motion to dismiss be denied and the appeal considered on its merits.
¶4Upon a rehearing En Banc, a majority of the court adheres to the Departmental opinion heretofore filed herein. *725