[5] In his petition for a rehearing in this matter the appellant argues that the court below assumed to decide matters that proponent was entitled to have determined by a jury. He asserts that when the proponent has introduced sufficient testimony upon the question of the execution of a will with due formality to establish a prima facie case the probate judge must submit the question of the due execution of the will to the jury. It would constitute a sufficient answer to appellant's contention to say that the point raised by him is now suggested for the first time. Not a word is said concerning the question in the briefs upon which the cause was submitted. "It has been repeatedly held that where a case has been decided, a rehearing will not be granted for the purpose of considering a suggestion of error made for the first time in the petition therefor," says 2 California Jurisprudence, at page 786. A number of authorities are cited to the point, from which we select only two: Prince v. Hill, 170 Cal. 192 [149 P. 578], and Estabrook Co. v.Industrial Acc. Com., 177 Cal. 767 [177 P. 848]. In the latter of these precedents it is said: "It is the settled rule of this court that points made for the first time on petition for rehearing will not be considered."
[6] In addition to this rule, however, and if we were to pass upon the point, we should be obliged to call attention to the fact that it was appellant who objected during the contest to submitting the question of execution of the will with the formalities required by law, to the jury. Upon the call of the contest, counsel for contestants asked leave to *Page 791 amend his pleading by denying the due execution of the will, asserting as his reason that he desired that issue to go to the jury. To this proposal the proponent and appellant interposed vigorous objections, on the ground that the due execution had not been made one of the grounds of contest, and insisted upon a continuance for further preparation if the court should permit the amendment. Finally, when it appeared that the court was about to grant proponent a continuance if he permitted the amendment, counsel for contestants decided to waive their request and the argument was terminated as follows:
The court: "Now just one minute. It is understood that when we close the evidence on the contest that then the court will take up the matter of the proof as to the probate."
Counsel for proponent: "That will be very satisfactory, and that is what we expected."
Under this state of facts appellant may not be heard to complain that the question was not submitted to the jury.
Petition for rehearing denied.
Works, P.J., and Craig, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 14, 1929.
All the Justices concurred.