ON PETITION OF REHEARING March 7, 1940.
OPINION The petitioner, appellant above named, files his petition for rehearing and bases his petition for rehearing upon two grounds which are in substance as follows:
First, that the holding in our former opinion that the insufficiency of the special verdict to support the judgment could not be raised for the first time on appeal, *Page 510 where the appeal is taken upon the judgment roll alone, is in conflict with the constitution, laws of the State of Nevada, and the former holdings of this court; and secondly, that the holding in our former opinion that the question whether the complaint states a cause of action, with reference to the particular breaches of covenants upon which the judgment is predicated, cannot be raised for the first time on appeal, where the appeal is taken upon the judgment roll alone, is in conflict with the laws of this state and former holdings of this court.
1, 2. In our former opinion we expressly held that the only points raised for the first time on appeal which could be considered by this court was the objection to the jurisdiction of the court or the objection that the complaint failed to state facts sufficient to constitute a cause of action, and it therefore follows that all other points or objections raised for the first time on appeal are therefore waived. So it follows that as to the first ground or point raised by petitioner, namely, that the special verdict of the jury was insufficient to support the judgment, the same was waived for the reason that so far as the record discloses no objection was ever made to the special verdict of the jury by motion for a new trial, or otherwise, in the trial court.
As to the second ground or point relied upon by petitioner, namely, as to whether the complaint states a cause of action with respect to the particular breaches of covenants upon which the judgment is predicated. This point was fully considered and passed upon in our former opinion, in that we recited the covenants of the lease agreement, the allegations of plaintiff's complaint as to the breaches alleged to have been made, the denials of the alleged breaches contained in defendant's answer, and held that the complaint stated facts sufficient to constitute a cause of action. So it appears from the petition that petitioner is attempting to reargue the questions heretofore argued, submitted, and passed upon in our former opinion. *Page 511
We are satisfied that our former opinion satisfactorily answers all of the points properly presented by the record on appeal, and that the same is not in conflict with the former holdings of this court.
3. Rehearings are not granted as a matter of right and are not allowed for the purpose of reargument unless there is a reasonably probability that the court has reached an erroneous conclusion. Pershing County et al. v. Humboldt County et al.,43 Nev. 78, 183 p. 314.
The petition for rehearing is denied.
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