¶1On Motion for Rehearing.
¶2The judgment heretofore rendered in this cause, to-wit, on December 3rd, 1883, at the present term of this court, by which the judgment of the circuit court was reversed and the cause remanded, is hereby set aside and a judgment of affirmance will be rendered and is hereby ordered. The sole ground upon which the reversal was based was that the court erred in refusing plaintiffs’ request that a jury should be called to try the issues of fact. No abstract of the record was filed by defendants’ counsel, and from that filed by plaintiffs in error the following order was omitted, although contained in the transcript, at page 31: “ Now at this day come the parties hereto by their respective attorneys,» and by agreement of said parties in open court, it is ordered that this cause be submitted to the lion. Wm. Henry for trial, his finding herein to be made the finding of the court, subject to all exceptions to the same extent as if tried by the judge of this court.” The cause was tried by ¥m. Henry, and we would not have reversed the judgment had we known of the existence of that order, and we would have discovered it, but for our confidence that no member of the bar of this court would omit from his abstract so important a part of the record and then insist upon a point which he must have known that such omitted part would have fully answered.