OpinioN op Petition por Eehearing.
Ouhmins, J.,delivered the opinion of the court on petition for rehearing,
McBride, O. J., concurring.Bespondents move on petition for a rehearing of this cause chiefly upon the grounds:
1. Appellant raised and argued to the court other matters of alleged error on the part of the court below than the ruling of said court in denying plaintiff’s motion for judgment on the pleadings; that “respondents were taken by surprise, there being no statement on appeal, or bill of exceptions, etc., that any matter whatever should have been argued by counsel, or considered by the court, except said ruling of the court below in overruling the motion for judgment;” and,
2. “Eespondents were taken by surprise that evidence was used on the hearing other than the judgment roll proper,” etc.
*156If the first alleged cause of surprise were sufficient upon which to grant a motion of this character, there is scarcely a case argued in this court upon appeal that would not require the same order. It would certainly be a strange rule that because the appellant pursued a different line of argument in’ this court from that pursued in the court below, therefore, if successful, respondents could complain of being-surprised, and for that reason be allowed to argue their cause again.
It is very seldom that precisely the same argument is twice made in all its particulars, especially when one is made during the progress of the trial at nisi prius, when it frequently occurs that but little time for deliberation and search among authorities is given. Besides, this court has but little to do with the particular reasons or arguments upon which the court below based its order denying the motion for judgment. The only question presented to that court for determination was the motion for judgment, predicated upon the assumed sufficiency of the complaint ancl the total insufficiency of the answer in law, it being claimed by the appellant that it did not even shadow forth a defense. This motion was denied, and it may have been primarily upon the ground that the property attached was exempt from forced sale on execution, and that the sheriff had the right to release such property, return nulla bona, and take upon himself to prove that such was its character, without any reference to the fact that the return on the execution upon which reliance is placed to justify the release of the property being mentioned. The only error complained of was the order of the district court denying this motion, and this was assigned as error in this court. Under this assignment of error it certainly was competent for appellant’s counsel to adduce any argument their ability might suggest, which tended to show that the denying of such motion was denying to their client a legal right; and, as I have already remarked, the defendants attempted to justify their action in releasing the property levied on under the attachment, on the ground that it was exempt from levy, and so returned on the execution, or attempted to. Now, *157as the sheriff bad the property when the execution was placed in bis bands, and having already returned the attachment into this court, it became absolutely necessary for him to make return of bis action in the premises on the execution and to justify by that return. Hence, this return became a legitimate object of attack by the appellant, and of impeachment if not sufficient in law under bis motion for judgment on the pleadings, the return having been referred to in the answer. The objection to the sufficiency of the return was not an error which was required to be assigned in order that the complaining party might take advantage of it.
No statement on appeal was necessary, nor any other bill of exceptions than was furnished by the motion and the certificate of the judge that it was denied and the ruling excepted to at the time. This, as already observed, was the only error assigned, and the only one passed under review by this court.
The second ground of complaint is, that evidence other than the judgment roll proper was used on the hearing in this court. As was stated by the chief justice in the opinion of the court delivered in this case, the certificate of the judge before whom the trial was had, that certain official records were read on the argument of the motion in the first instance, together with the fact that the same records were referred to in the answer as containing a more full and explicit statement of the facts constituting the justification of the defendants, were sufficient on which to permit appellant to use these records on the hearing of the motion in the court below and on appeal.
As no issues of fact were desired to be reviewed by the appellant, there was no necessity of a motion for a new trial or a statement of evidence, and hence none was made. The language of the answer in referring to these records, after reciting a certain state of facts, is in these words: “As will more fully appear by the judgment roll on file in said clerk’s office, and to which reference is hereby made.”
It is also said that the action was virtually for a false return, and therefore the defendants were surprised that *158counsel should have insisted on tbe liability of defendants .on tbe ground that tbe sheriff failed to return tbe execution at all, or at least within tbe time required. On an examination of tbe complaint it will readily be seen that tbe action is based upon tbe liability of tbe sheriff for not making tbe judgment on execution, it being alleged that such sheriff bad property in bis bands at tbe time he received the execution out of which be might have satisfied tbe same, but that be failed and neglected to do so. Having bad tbe property in bis possession and keeping tbe execution beyond tbe time in which to make bis return fixes bis liability to tbe judgment creditor.
It is also complained that tbe respondents were not furnished with, or apprised of tbe appellant’s points upon which be would rely for a reversal of tbe judgment, until tbe argument was commenced. This is true; but while it may be fault in tbe practice, it is nevertheless permitted by tbe rules of tbe court, and hence is ho ground for rehearing.
I have thus carefully examined tbe petition for rehearing, bat do not find sufficient in it to warrant this court in granting this motion. We are confirmed in tbe opinion that we took tbe correct view of tbe case in tbe argument already made, and that if we were to grant another argument tbe result would be tbe same.
Petition for rehearing denied.