ON MOTION FOR REHEARING.
ROBERTS, C. J.-In his motion for a rehearing in this case appellee sets forth two grounds for the same. The first was that under the pleadings no issue was raised by the parties concerning the right of appellee to maintain the cause of action set forth in the complaint. The second ground is stated in the motion as follows:
“Because it appears from the decree entered by the district court that the appellant, W. J. Irwin, consented that the money in the hands of the county road board, sufficient to-satisfy appellee’s claim, should be paid into the cleric of the district court of Chaves county, N. M., tp await the decision-of the Supreme Court in the case of Mundy v. Irwin, 20 N. M. 43, 145 Pac. 1080, the basis of appellee’s action in the-present caso, and by such agreed decree the appellant became bound to apply the sum so paid to the cleric in satisfaction of said judgment in Mundy v. Irwin when affirmed by the Supreme Court, and to pay the same to the appellee in this action (he being the assignee of Mundy), without reference to the cuestión as to whether or not said money, while in the hands of the county road board, was subject to the equtable action of appellee in this case.”
The first ground is evidently abandoned by appellee, as it is not argued in his brief filed on rehearing. The second ground is based upon the last paragraph of the decree, from which the appeal was prosecuted. In this decree the court ordered the county road board of Chaves county to pay off and discharge from the funds in its hands due to the appellant, Irwin, the amount which the decree stated was owing by Irwin to Dow, under the judgment rendered in favor of Mundy, and assigned by him to Dow. Further reference to the provisions of the judgment need not be made, as it was in the ordinary form of a judgment in garnishment proceedings, where the garnishee is ordered to pay to the garnishor funds in his hands belonging to a defendant. The last paragraph of the-judgment reads as follows:
"“It is further ordered by the court by consent of counsel for the plaintiff and the defendant, W. J. Irwin, that a sum •equal to ilie principal and interest due oil the judgment in the case of Mundy v. Irwin, transferred by É. S. Mundy to H. M. Dow, and the basis of the suit in this case, to wit, $1,322.80. together with the costs of this action, shall he by the county road board1 of Chaves county paid to the' clerk of the district court to be by him held pending final judgment in the case of Mundy v. Irwin, now before the Supreme Court of this state, and that such fund be then disposed of by further order of the court.”
On the 28th day of December, 1914, when the decree above referred to was signed, the original case of Mundy v. Irwin was pending in this court on appeal. The present suit was instituted for the purpose of enforcing the collection of such judgment, which had not been superseded, and which had been assigned to the appellee, Dow. On the 1st day of February, 1915,- the following order was made by the district court:
“Now on this 1st day of February, 1915, it appearing to the court that an appeal bas been granted to defendant, W. J. Irwin, from the judgment heretofore on December 28, 1914, in this cause made; it further appearing that said W. J. Irwin has filed a supersedeas bond, which has been approved by the clerk, in the sum required by statute: it is therefore by the court ordered that the sum of money in the clerk’s hands, to wit, $1,322.80, be by said clerk paid out to the said W. J. Irwin.”
[2] Appellee’s contention now is that by the paragraph of the decree above set out, appellant became bound to apply the sum so paid, to the clerk in satisfaction of said judgment in the original case of Mundy v. Irwin, when the same was affirmed by the Supreme Court, if such case was affirmed, without reference to the question as to whether or not said money, while in the hands of the county road board, was subject to the equitable action of appellee in this ease. No such point, however, was made by appellee upon the original hearing. In his brief filed upon that hearing, in discussing the point, “Is a creditor’s bill a proper remedy in this case ?’’ he said:
“Furthermore, as will appear from the last paragraph of the decree, this fund passed out of the hands of the road hoard and into the hands of the clerk of the district court, as a stakeholder, to await the decision upon his appeal from the plaintiff’s judgment, and thus by his consent, its status and its whole character was changed.”
“In civil cases it is a well-recognized rule that'questions not advanced on the original hearing will not he considered on the petition for a rehearing.” 2 R. C. L. 173; Loretto Literary Society v. Garcia, 18 N. M. 318, 136 Pac. 858.
But if we should assume that the question was here for consideration, a sufficient answer to appellee’s contention would be that the district court did not so construe the paragraph in question, for, upon appellant’s execution of a supersedeas bond, an order was entered, directing the clerk-to pay the fund to appellant. Evidently the only object in view, by both parties, and the court,, in entering the paragraph of the decree in question was to first hold the proceedings in statu quo until this court, should decide the original case; and, second, to enable the court, after this court had decided that case, to make an appropriate order relative to such fund. Thus, if appellant did not appeal from the final decree in this case and file a .supersedeas bond within 60 days, the court would have been warranted in ordering the fund paid over to appellee. When appellant procured the order allowing him an appeal and filed a supersedeas bond, the’ court awarded the fund to him, because appellee was amply protected by such bond, in case he prevailed here. Appellee’s present contention was evidently an afterthought; for¿ if he is right in his present position, his remedy would have been to ha-ve applied to the 'district court for an order, directing the clerk to pay the funds in his hands to his client, when this court affirmed the original case. Again, he should have objected to the or-' der of the court, ordering such fund paid over to the appellant, when the supersedeas bond was filed, for such order was violative of his present understanding as to the effect of the consent paragraph of the decree.' The action of the trial court and the conduct of the parties all tend' to show that the decree was not intended to have the effect which appellee now ascribes to it.'
For the reasons stated, the former opinion will be adhered to, and it is so ordered.
Hanna and Parker, J.J., concur.