ON MOTION FOR REHEARING.
HANNA, J.The appellants move for rehearing upon' the ground that this court overlooked the fact that the cause originated in the justice of the peace court, where there were no pleadings, and on appeal to the district court, was there tried on the same theory and with no pleading's. This contention is not well taken, because the record discloses that, as a matter of fact, there were pleadings; the answer and cross-complaint of the defendant, appellant here, being included in the record.
This court held, in the ease of Board of Education of City of Santa Fé v. Astler, 21 N. M. 1, 151 Pac. 462, in which case the appellant answered in the justice of the peace court by a written pleading in which a certain defense was not referred to, that:
“While it is true, as contended by appellant’s counsel, pleadings are not required in the justice of the peace court to he in writing, * * *and upon, appeal the case is tried de novo in the district court, ‘and the same rules shall govern in the district court in said trial that are prescribed for the government of justices’ courts,’ * * * yet, where' in such cases a defendant elects to file a written answer, he should be held to be confined to the issues he thereby tenders and to have abandoned such defenses as he fails to set- out.”
For tlie reasons stated, tlie motion for rehearing is denied.
Roberts, O. J., and Parker, J., concur.