Scanlan v. Home Ins. Co.

On Rehearing.

Appellees, in their motion for rehearing, insist that we have decided this ease upon a legal theory wholly different from that urged by appellants in the trial court and in this court, in that, as they contend, recovery was sought by appellants wholly upon the theory that the ordinance of 1930, and not the ordinance of 1922, prohibited the reconstruction of the building in question. Such contention is in the face of the record, which is to the contrary. Appellants specifically pleaded the provisions of the ordinance of 1922, upon which we based our opinion, and introduced them in evidence, in support of their contention that their building was a total loss. Ap-pellees themselves undertook to show that said ordinance of 1922 had been repealed by the building code adopted in 1930, and to that end specifically pleaded such fact and introduced in evidence portions of such code in an effort to support the contention. Our original opinion discusses the issues as made by the record and presented by the briefs of the parties.

The motion for rehearing is overruled.