On Motion for Rehearing.
ROBERTS, J.Appellee has filed a motion for rehearing in which he contends; First, that the opinion of this court is contrary to_ the decisions of the federal courts construing the National Bank Act. As to this proposition it is sufficient to say that we are satisfied with the original opinion.
The second proposition urged is that the evidence in the record as to whether appellant relied upon the guaranty of the bank is conflicting; that the court made no finding upon this proposition, but as judgment was entered for appellee, it is to be presumed that this question was resolved against appellant, and that by reason of the record the decision by this court is in conflict with the case of Dailey v. Foster, 17 N. M. 654, 134 Pac. 206, to the effect that in case of special findings silence upon a material point must be regarded as a finding against the party having the burden of proof. Appellee, however, is precluded from raising this contention on rehearing. In its original brief, it presented but three questions for the consideration of the court, which were stated as follows:
First, the instrument in question is not a guaranty; second, the instrument, if a guaranty of the bank, is ultra vires; third, the statute of limitations has barred any action by the plaintiff for money had and received.
[3] The uniform rule in appellate courts is that a party must present all questions in his original brief, which he desires the court to consider, and he will not be permitted to present new points in a petition for rehearing. Elliott on Appellate Procedure, § 557.
In the case of Literary Society v. Garcia, 18 N. M. 318, 136 Pac. 858, this court refused to consider on rehearing the question as to whether appellants waived their objection to the amended complaint by filing an answer to it because the point had not been raised on the first hearing of the case.
In the case of Dow v. Irwin, 21 N. M. 576, 157 Pac. 490, L. R. A. 1916E, 1153, appellee attempted to raise a new question in his motion for a rehearing. The court said:
“In civil cases it is a well-recognized rule that questions not advanced on the original hearing will not be considered on the petition for a rehearing.”
In the case of State v. Williams, 22 N. M. 337, 161 Pac. 334, and State v. McKnight, 21 N. M. 14, 153 Pac. 76, it was held that the appellant could not raise on motion for rehearing new questions not 'presented in his original brief.
In 4 C. J. p. 633, it is said:
“The mere fact that the court has overlooked certain point presented by the record is not sufficient to authorize a rehearing', however, unless it further appears that its attention was called to the point in question by the briefs or arguments of counsel.”
In the original opinion filed in this case there certainly is no legal principle enunciated which conflicts in any way with the case of Dailey v. Foster. Appellee brings forward for consideration a portion of the record not called to the attention of the court in its original brief, and asks the court at this time to consider this question and to deny the relief awarded appellant. Under all the authorities the question is not available on rehearing.
For the reasons stated, the motion for rehearing will be denied; and it is so ordered.
Parker, C. J., concurs. Raynolds, J., being absent, did not participate.