delivered the opinion of the court.

The appellee has moved for dismissal of the appeal taken in this ease because the lower court ordered the appellant on August 11, 1911, to file an amended bill of exceptions and statement of the case and he has not done so within *252the time allowed. In opposing the motion for dismissal the appellant showed by a certificate of the clerk of the lower court that the court ordered the amendment of the bill of exceptions by including the documentary evidence so that this court might have before it the exact contents of the documents; that on August 21 he moved the court to allow him to file a true and exact copy of the said documentary evidence as a supplement to the bill already presented and that motion was granted; that thereafter, or on November 21, he moved the court to order the appellee to attach to the record certain documents which he had presented in evidence and had later withdrawn, and the said last motion had not been disposed of by court on the 1st of April.

From the foregoing facts it appears that if the bill of exceptions and statement of the case have not been amended by filing a true and exact copy of certain documents because of the fact that the lower court has not ruled on the appellant’s motion that the court order the appellee to attach to the record certain documents which he had presented in evidence and later withdrawn, and, therefore, the delay in presenting the amended bill is not due to the appellant’s failure to comply with the order of the court within the time allowed therefor, nor to the fact that he did not prosecute his appeal with due diligence or in good faith, Rule 59 of this court, invoked by the appellee, is not applicable and his motion for dismissal must be

Overruled.