ON SECOND MOTION POR REHEARING.
BRICE, District Judge.Appellee contends that the Supreme Court had no jurisdiction to entertain or consider this appeal, because it was allowed more than one year after the rendition and entry of the final judgment. This question was heretofore raised in this case on the 19th day of September, 1918, by a motion to dismiss. This motion was overruled without an opinion on January 8, 1919, under the authority of Romero v. McIntosh, 19 N. M. 612, 145 Pac. 254, and no motion for rehearing of that question was filed. Thereafter the case was submitted on its merits, and reversed and rendered in favor of appellant on August 19, 1919, and a motion for rehearing was overruled February 14, 1921. This question was not raised in appellee’s original brief on the merits, nor in his motion for rehearing, and now it is sought to have us review our original action in overruling the motion to dismiss this appeal by a second motion for rehearing on the merits. Under these circumstances, this court will not, at this time, review its former action.
[4] It is further contended that no issue appears in the pleadings that would authorize the Supreme Court to consider the question of whether or not there existed such fiduciary relations between appellant and appellee, as would preclude appellee from making a relocation. The trial court decided this question, and by agreement of appellee permitted appellant to file an amended reply raising this issue. The district court having determined the question, and it having been presented to the Supreme Court in the briefs of both parties, the issue was properly before the Supreme Court. Canavan v. Canavan, 17 N. M. 503, 131 Pac. 493, Ann. Cas. 1915B, 1064.
The third point raised is to the effect that there is nothing in the testimony offered by plaintiff to sustain its claim of estoppel against defendant that would preclude the defendant from making relocations. This question has been heretofore thoroughly considered by the court and its decision based thereon. Our reasons are given at length in the opinion filed upon the first motion for rehearing, and we find no reason for changing the views expressed in that opinion, and adhere thereto.
The second motion for a rehearing is overruled,- and it is so ordered.
ROBERTS, C. J., and PARKER, J., concur.