A motion for rehearing has been filed, urging upon us the consideration that we were in error in holding that the question of remote damages was not properly raised in the court below, so as to be available here. The proposition was carefully considered in our opinion, and for that reason it need *Page 201 not be again discussed. However, a brief restatement may not be amiss.
Counsel argues that the question was first presented by a motion to strike that portion of the complaint alleging damages for loss of cattle, which motion was embodied in the answer of appellants. This is not available for the reason that it was not called to the attention of the court below, and no ruling thereon was invoked, if, indeed, being embodied in the answer, it was not so out of place as to be unavailable in any event. The objection to the evidence in support of the allegation of loss of cattle was not in proper form; it being interposed to a preliminary question, and not renewed to the actual evidence when introduced. The motion to strike the evidence is not available because appellants had no absolute right to have it stricken, after allowing it to go in without objection. The request for instruction to the jury was erroneous, and was properly refused, and no exception was saved to the giving of the instruction in which the alleged erroneous measure of damages was submitted to the jury. Under such circumstances no error can be assigned here.
The errors assigned in the motion for a new trial for the first time are not available, where the errors were not saved during the trial. During the trial it appeared from the testimony of the appellee himself that he did not own the cattle, and consequently had no right to recover for their loss. No motion was made, however, to withdraw from the jury all of the evidence as to the loss of cattle, nor was the court requested to instruct the jury to that effect. The point is therefore not available.
We have thus, unnecessarily perhaps, again gone over the whole case, and find nothing calling for a departure from our former opinion. The motion for a rehearing should therefore be denied; and it is so ordered.
BOTTS and FORT, JJ., concur. *Page 202