ON MOTION FOR REHEARING. Appellant has filed a motion for rehearing herein, wherein he claims that he waived and does now waive certain questions raised in the court below, discussed and decided by the original opinion herein and requests and urges the court to so change the original opinion herein as to omit such matters, stating that it places him in an embarrassing position because of the fact that he had waived the said questions.
Appellant's statement that he had waived questions is based on the idea that because he did not present them in his brief, thereby he waived them. This is not the practice in this court and never has been. That is the practice in the Courts of Civil Appeals for the rules there prescribe expressly that when a question raised in the lower court is not presented by the briefs it is thereby waived and the rules also there prescribe in civil cases that if no brief is filed *Page 245 by the appellant the court will not consider the case but dismiss it. This court cannot under the law dismiss any case because no brief is filed for the appellant, but must consider, whether briefed or not, all questions raised and properly presented by either bills of exceptions or grounds of the motion for new trial. Frequently attorneys in briefing their cases here, brief only a portion of the questions thus raised and experience has shown us that when we pass upon those questions alone, generally we are taken to task by attorneys in motion for rehearing because we did not pass upon the questions thus raised. Hence, it is the practice of this court to consider and pass upon all questions raised in the court below, unless expressly waived in this court.
However, as appellant's attorney in this case was laboring under this mistake in the practice of this court, and urges that such questions as he had not briefed were waived and urges the court further to omit from the opinion the discussion and decision of such questions, we have concluded in justice to him, to comply with his request. Therefore, the original opinion as heretofore rendered is hereby set aside and vacated and will not be published. Instead thereof this is given as the original opinion: