¶1The record in this case is not certified to by the circuit clerk nor does the bill of exceptions contain the due bills and receipts upon which the claim for judgment is based. We have before us in this case a record not certified to by the clerk, a bill of exceptions certified to by the judge, with nothing but the bill of exceptions to show the judgment. So far as the judgment is shown there was no exception to the same or motion for new trial. With the record in this condition, we must affirm the judgment without considering the merits of the cause.
¶2The judgment is affirmed.
¶3Judgment affirmed.
¶4[On petition for rehearing. Opinion filed August 29, 1SS9.]
¶5This petition for rehearing comes too late under the rules of this court, to be considered. Counsel for appellee, however, seeks to avoid the rule of court by consenting to a rehearing. Consent of counsel for appellant and appellee can not, however, avoid the fact appearing on this record, that the judgment of the Circuit Court was not excepted to, nor a motion for new trial entered. One or the other must be shown to give us jurisdiction to hear and determine a case on its merits. That can not be waived by counsel, nor can we recognize the right of counsel to waive the rules adopted by this court with reference to rehearing. This motion for a rehearing is dismissed.
¶6Motion dismissed.