(dissenting).

I am unable to concur in the denial of the consideration of the merits of the contention of this petition for rehearing, name *653 ly, that the court erroneously held the findings support the judgment.

In the opinion so holding we proceeded ex industria to discover that the following assignment of error, “that the judgment is contrary to law in that it is not justified by any evidence nor is it supported by findings of fact,” violated a procedural rule because it contains the assignment of more than one error and fails to “set out separately and particularly each error assigned and intended to be urged.”

I say ex industria, because the first brief of the appellant on the appeal set forth this contention, as follows: “The findings, conclusions of law, and judgment of the court are, therefore, not sustained by any findings and are not in accord with the law of the case as established by this court in its prior decision.” And also: “Therefore, the judgment of the court in the present instance is not only not sustained by any findings but * * *

The brief of the appellee meets the contention under this statement of the error with many pages of argument. What is important is, that appellee never then questioned that the court is sufficiently advised of the claimed merits of the appeal by the assignment of error which says that the judgment is not sustained either by the evidence or by the findings. He did not only not raise any question as to the imperfection of the assignment, but he assumes, and in effect, by his silence, admits, it is good.

Having ex industria found that the assignment of two errors does not comply with the rule for their separation, our first opinion on this appeal then proceeds to state: “It is exceedingly unsatisfactory to dispose of this case solely because of failure of the parties to comply with the rules pertaining to the assignments of error and specifications of error.” And it then goes on to hold that the findings do sustain the judgment in the following holding: “In view of the findings, first, that the value of the property released by the Indemnity Company’s bond amounted to $6,000, second, that the San Francisco Iron & Metal Company had assumed and agreed to pay the debt of N. Abraham, it follows from our decision on the former appeal that the judgment of the trial court is correct.”

It is obvious from this holding that the court was in no way embarrassed in discovering what the two. parties agreed as to one of the questions of merit in the appeal.

The petition of the appellant seeks rehearing on the ground that the court erred in the above holding that the findings support the judgment. What is more important is that the appellee, in his reply to the petition for rehearing, assumes the merits of the contention is under consideration by the court in a chapter headed “Did the court err in concluding that the findings support the judgment?”

I believe that the reasons presented in the petition warrant the granting of the rehearing. That, however, is not the qiiestion to which this dissent is addressed.

It is with reference to the attitude and emphasis of a court of justice, which has jurisdiction of an appeal, in the examination of procedural steps to inform itself as to the merits of the appeal, where both parties argue the merits as if the necessary procedural steps had been taken, and raise no question of deficiency or absence of assignment.

In this case there is no failure to assign as error that the findings did not support the judgment. The assignment is there; it was clear — so clear that it caused our ruling on it. What is done by this second opinion and decision, to which- this is a dissent, is to refuse to consider the merits of the petition for rehearing by striking out from the original opinion the holding to which the petition is addressed, thereby basing the opinion solely on this issue of the violation of our rule, requiring separate statements of assigned error.

Even if the error had not been assigned at all, we have exercised our discretion to consider it and, in my opinion, would have abused that discretion if we had not. Af ter having exercised it, it seems a denial of justice to frustrate the consideration of the correctness of our ruling by the mere process of blotting it out of the opinion to which the petition is addressed.

The suggestion that a claim of plain error is not sufficient, but that there must actually have been error to cause our examination of the record, involves a casuistry which defeats itself.

The Supreme Court makes no such mistake. The decision of Mutual Life Ins. Co. v. Parkinson (C.C.A.3) 72 F.(2d) 759 , cited in our original opinion on this appeal, in turn relies upon the Supreme Court .decision of Columbia Heights Realty Co. *654 v. Rudolph, 217 U.S. 547 , 30 S.Ct. 581 , 54 L.Ed. 877 , 19 Ann. Cas. 854. In that case the Supreme Court construed its then rules 21! and 35 which reserved the right to consider plain error unassigned. The court held that it is the claim of error made by the plaintiff in error and not the actual existence of error which permits the invocation of the rule that the claim may be considered. This is apparent because the court did examine the record under- the claim of unassigned error and did find that it was not error. Its language is:

“For these reasons, we shall exercise the option reserved under both rules 21 and 35, .of examining the transcript, that we may be advised as to whether there has occurred any ‘plain error’ which obviously demands correction.

“1. Did the court err in allowing an assessment of benefits under the act of June 6, 1900? We think not.” (Here follows two pages of discussion why the record shows they did not so “think”.)

Columbia Heights Realty Co. v. Rudolph, supra, 217 U.S. 547, 552 , 30 S.Ct. 581, 584 , 54 L.Ed. 877 , 19 Ann.Cas. 854.

See, also, Wiborg v. U. S., 163 U.S. 632, 658 , 16 S.Ct. 1197 , 41 L.Ed. 289 .

The presence of the two errors in the assignment, which fails to comply with our rule, in no way concerns the jurisdiction of the court. Since the jurisdiction is here and the parties are here, each urging his contention on the merits of the claim of appellant, and appellee does not complain of the assignment, and since the assignment fully informs us of what the contention is,' pur industrious discovery of a technical procedural reason for refusing to consider its merits cannot be said to be the search for justice for which the federal courts were created.

Concerning rule 42 of the United States District Court for the Northern District of California, it is my opinion that this rule was intended to create a situation equivalent to a treatment of the decision as merely tentative and thereby extending the trial, and not to create a final disposition of the cause. I agree that if this rule could be interpreted to convert an announced decision into a statement of the judge that “I am now inclined to decide this case for such a party and desire proposed findings for my further enlightenment,” the claimed error in the denial of the proposed findings in this case could be considered as a more tenable contention, but I cannot so construe the phraseology of the rule.

I do not care to indicate what would be the effect of a standard form of such a tentative decision, required by a rule to be used by all the judges of the District Court and actually used in announcing such tentative decision, on the question whether findings thereafter requested are requested “during the trial.”