ON SUGGESTION OF ERROR. Appellees have filed a suggestion of error herein, alleging that in our former opinion decisive of the issues involved, we made "several serious errors." We have carefully considered them all in conference and agree that appellees' contentions are not sustained. However, we have concluded that one suggestion of error should be recognized by response thereto. Our former opinion has been published in 30 So. 2d 589, but not yet in the State Reports.
The charged error we discuss is the complaint that we "erred in holding that appellees herein had filed a `petition' with the Board prior to the Board's order of August 28; they had not; appellees' first petition was that of September 19, upon which the appealed order of September 30 is based."
Appellees say in their present brief: "The Court's misapprehension no doubt arose from two sources. The Board's motion to dismiss in the Circuit Court avers that appellees herein had filed a petition `prior to July 15, 1946'. Also, in appellees' brief, page 2, we said that `prior to July 1946,' appellees had filed a petition with the Board. However, neither of these statements is true. They were inadvertent errors.
Their contention is further that what we assumed to be a petition was merely a letter. The document however set forth fully the views of appellees in the matters then before the Board, was treated as a petition and was incorporated in the transcript of the proceedings as such. Furthermore, its author, Mr. Patman, attorney for appellees, appeared and conducted the major part of the proceedings as their attorney, and also testified as a witness, in the course of the hearing, which resulted in the order of the Board. It will be seen from the foregoing statement that the matter proceeded, with the active participation therein, on the part of appellees, and with no *Page 156 objection made by them of the alleged absence of a petition on their part. Will anyone insist that, had their views and purposes prevailed, they would have appealed, on the grounds they here urge? The question answers itself.
Having conceded in their brief that they filed a "petition," this was a concession of a fact in the course of the procedure before the Board, on which we have the right to rely. From the consequences of their admission they cannot escape now by ascribing, what they presently call "an inadvertent error," and charging it to us, even if in reasonable contemplation it was an error of any sort by them or the Court. A party to a legal controversy cannot obtain the rights of a party at a hearing of his cause by a concession that such party had followed the procedural requirements of the statute, and, subsequently, upon upon failure to prevail, repudiate such concession, in order to defeat the unfavorable result of the adjudication.
This particular suggestion of error is based on an argument no where initiated in the original brief of appellees on the submission of the case here, wherein our decision was against appellee. It emerges into our view for the first time in the suggestion of errors. We cannot, therefore, approve here the argument of appellees' present brief. See State ex rel. Suddoth v. Tann, 172 Miss. 162 158 So. 777, 159 So. 539.
We re-affirm what we said in the case of Delta Cotton Oil Co. v. Elliott, 179 Miss. 200, 201, at page 217, 172 So. 737, 174 So. 550, 551: "It is elemental that the duty rests upon an appellant to show error when he presents his appeal and he must do this on the original submission; for we have time and again held that `it is rarely the case that this court will notice, on a suggestion of error, a new contention, one not assigned or argued on the submission of the case. As a general rule it is no more permissible on appeal to present a case in halves or by piecemeal than it would be on the original trial'." So here, in conclusion, it is our view that the point would not have *Page 157 been well taken had it been made when the case was submitted; but it could not now be sustained, when first appearing in the suggestion of error, as here.
We do not deem it necessary to discuss the other assignments, which have been clearly and correctly decided, in our original opinion. The suggestion of error must be and is overruled.
Suggestion of error overruled.