ON PETITION FOR REHEARING August 9, 1929. A strenuous petition for a rehearing has been presented. Both the petition and the reply thereto discuss much that is not in the record and which cannot be considered.
We will first dispose of the contention that the appellant did not complain that the judgment is excessive.
It is true that counsel for appellant did not use the word "excessive," but the only inference to be drawn from the language used in his reply brief is that such was his contention. He alluded to the fact that the question of the value of the stock in question was not alleged in the complaint and hence not an issue in the case.
He argued that the 900 shares of stock to be delivered to the plaintiff was attached in a suit pending against the plaintiff, because of which the defendant could not make delivery. After considerable argument along this line it is said in the brief: "This defendant is entitled to an opportunity to pay without penalty this obligation after the attachment had been duly dissolved. * * * The additional purpose of this appeal is to permit this appellant to collect a $200 promissory note. * * *"
Thus it appears the appellant was asserting two grievances — one the right to pay without a penalty, *Page 411 and the other relative to the $200 pleaded in the counterclaim. What could appellant have alluded to as the penalty except the difference between the $2,700 mentioned in the document sued on and the sum of $4,500 for which judgment was rendered, less the $200 for which counterclaim was asserted? We think appellant was complaining of an excessive judgment.
There are no allegations in the complaint from which we might infer that this is an equitable action or which could confer jurisdiction upon a court of equity.
We disposed of this matter in the first instance, not on our idea as to what kind of an action should have been instituted, nor of the allegations necessary, but upon the record as we found it and upon the points urged upon appeal.
Both the petition and the reply refer to matters dehors the record, which cannot be considered.
The petition is denied.