The appellants, defendants below, have presented a petition in this case asking (1) for a rehearing, and (2) failing in that, for revision of the Court's opinion heretofore filed. *Page 543
It appears that counsel for plaintiffs, desiring to have the charge of the trial Court incorporated in the record for appeal, proposed an amendment to that effect. The defendants objected, and the matter was submitted to the trial Judge, who made an order allowing the amendment. This order was printed in the transcript of record, along with a statement that the defendants had served on the plaintiffs notice of appeal from such order; the grounds stated being that the printing of the charge was entirely unnecessary for a determination by this Court of any question involved in the appeal. While the arrangement of this appeal in the transcript of record is not exactly what it should be, we think what appears there is sufficient as an exception to the order.
No reference was made in appellants' brief to this appeal, and at the time the opinion was prepared, the Court did not recall that it had been mentioned by counsel in oral argument. We, therefore, properly concluded that the appeal had been abandoned. However, since the filing of the petition, the Court recalls, with certainty, that the appeal was mentioned in the oral argument; counsel for defendants directing the Court's attention to it and requesting that it be passed upon. We think it proper, however, to say here that it is always wise for counsel to direct attention in their printed brief to all matters which are deemed to be of sufficient importance to be passed upon by the Court. In view of the many appeals heard, it is not always possible to remember a reference made to a question in oral argument.
In the circumstances, a rehearing is unnecessary, as we may now properly dispose of the matter. The charge of the trial Judge in this case was a most excellent one, fair and full, and a correct declaration of the principles of law applicable to the issues made. The printing of it in the record, however, was wholly unnecessary to the decision of any question presented by the appeal. There was no exception taken to it; the exceptions relating only to alleged *Page 544 error in the Judge's refusal to grant a nonsuit and a directed verdict. This appeal, therefore, is sustained, and it is hereby ordered that the respondents be required to pay for the printing of the charge.
The opinion heretofore filed, together with this order, will stand as the judgment of the Court.
The order staying the remittitur is revoked.
MR. CHIEF JUSTICE BLEASE and MR. JUSTICE BONHAM and MR. ACTING ASSOCIATE JUSTICE G.B. GREENE concur.
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