In an application for rehearing filed on behalf of the defendant, appellant herein, attention is called to the fact that the Court was in error in stating, in the opinion herein rendered, that it was after the motion to strike out the supplemental petition had been filed, that the case was assigned for trial without objection on her part.
Upon checking the record again we find that that is correct and that we were in error in that respect as the supplemental petition was filed after evidence had been taken. However the case was not argued and submitted until several days after the motion *Page 742 to strike out had been filed. It was fixed for argument by consent on October 17, 1944 and was argued and submitted "on exception" October 27, 1944. Whether the argument involved the merits as well as the motion to strike out and an exception of no cause of action which had also been filed, we have no means of knowing as the extract from the minutes of court is not clear on that point. We presume it was on the merits also, however, because the next entry found in the minutes shows that judgment was rendered on the merits on February 20, 1945.
[1] The judgment as rendered had the effect of overruling the motion. After it had been signed, defendant had the right to ask that the case be reopened, or that a new trial be granted but apparently she did nothing further than to apply for a devolutive appeal to this court which she was granted.
[2] As we endeavored to point out in the original opinion the supplemental petition did not have the effect of changing the issues in the case. That seems to be the sole complaint that is now made in the application for rehearing. We regret the error that was made in the matter of mentioning dates in the original opinion but we did not consider that as having been material to the real issues that are presented in the case. After carefully going over these matters again we still believe that all these issues were properly disposed of and decided, and the original judgment and decree will be allowed to stand.
Rehearing refused.