¶1 dissenting.
¶2 In construing and applying sections 12 and 34 of the 1935 new trials and appeals act this court, in the case of Neill v. Mikulich cited in the prevailing opinion, was influenced by the language of section 9 of the same act. A comparison of sections 8 and 9 of the 1937 new trials and appeals act with the corresponding sections (8 and 9) of the 1935 act shows, in my opinion, a definite intent on the part of the 1937 legislature to permit consideration by this court, on appeal from a judgment and without a motion for new trial having been made, of the question of the sufficiency of evidence to justify the decision of the trial court. The testimony and evidence must, of course, be brought to this court by bill of exceptions incorporated in the record on appeal, as was done in this case. Entertaining these views, I think the appellant is entitled to have his appeal considered on the merits.