The opinion by Commissioner Calkins reversing the judgment of the district court was filed March 5, 1909, and is reported in 83 Neb. 728. A motion for rehearing was granted, but later it was discovered by counsel that the bill of exceptions had not been filed in, the office of the clerk of the district court when leave was asked and *103given for tlie withdrawal of the record for such filing. This caused the case to lose its place upon the docket, and it was not reargued and submitted until the present sitting, February 7, 1910.

The arguments presented by counsel for appellee have been exhaustive, but we are not persuaded that the commissioner’s opinion is subject to the criticisms made, but that his holdings are correct, and it could serve no good purpose to repeat what he has said.

The former opinion and the order thereon reversing the judgment of the district court are adhered to.

Judgment accordingly.