Buhman v. Nickels & Brown Bros.

The petition for a rehearing is denied.

This court on July 5, 1905, reversed the judgment which was rendered by the trial court in favor of defendant. Defendant now asks a rehearing on the ground that its answer erroneously alleged that the notice of appeal from the order confirming the sale of the real property in question was filed on January 12, 1903, when, in fact, it was not filed until January 19, 1903, on which day, also, the undertaking was filed. As the record stood when the cause was submitted here, it appeared by the answer that the undertaking was not *Page 271 filed five days after the notice of appeal was served, and, hence, as we held, the appeal was ineffectual for any purpose.

In appellant 's brief the point was distinctly made and attention was specifically drawn to the allegations of the answer, and numerous cases were cited in support of the point. Respondent took no notice of the matter, and in its brief made no suggestion that there was any clerical or other error in the date given for the service of said notice of appeal, but relied wholly on its demurrer to the complaint.

The supreme court has denied rehearing in numerous cases (but few of which are reported), where points made in the briefs have been waived or presumably confessed, by failure to argue or notice them, and afterwards the losing party has sought to have the same points heard by petition for a rehearing. (SeeAtherton v. Board of Supervisors, 48 Cal. 157; Dougherty v.Henarie, 49 Cal. 686; People v. Northey, 77 Cal. 618, [19 P. 865, 20 P. 129].)

In the present case the court had every reason for assuming that the facts were as stated in the answer, and we do not think the defendant should be permitted to have a rehearing for the purpose of correcting the record after having deliberately ignored the matter when its attention was called to it. Furthermore, it is not claimed that the answer as printed in the record is other than the answer served and filed; the claim is that a mistake occurred in its preparation, and thus we are asked in effect to permit an amendment of the pleadings, which we doubt our right to do. We have less hesitancy in denying in view of the fact that defendant still has the opportunity to fully protect its rights in the trial court. The ruling of this court as to the appeal pleaded in the answer will not prevent the defendant from obtaining every advantage which his appeal may give him.

Upon the remaining questions discussed in the opinion on file we adhere to the views there expressed.

Buckles, J., and McLaughlin, J., concurred. *Page 272