ON REHEARING.
Wood, J.When this cause was first decided, there was no brief for appellee. This court on application for rehearing, upon sufficient showing, set aside the judgment, the term being about to expire and permitted counsel for appellee to file brief as upon original consideration of the cause. On the record as presented, our first conclusion was correct. Counsel for appellee contends that the decree shows that the cause was heard upon “the depositions and oral testimony,” and that, as there is no bill of exceptions preserving and presenting the oral testimony, the judgment must be affirmed. True, the first judgment that was rendered at the September, 1906, term recites that “the cause was submitted on the complaint, answer, reply, exhibits, depositions and oral testimony.” But the- record also of that term, after the entry of the decree, contains the following: “On this day the plaintiff filed his motion for new hearing in this cause, motion granted by the court, and cause by consent continued.” At the February, 1907, term of the court recites: “Now comes on for hearing before the court the motion for a new trial heretofore filed in this court. * * * The court, being well and sufficiently advised in the premises, doth grant the said motion for new trial and vacate the decree heretofore rendered herein. The cause is resubmitted upon the pleadings and depositions of the witnesses,” etc.
We are of the opinion that the granting of the motion for new hearing at the September, 1906, term of the court ipso facto vacated the decree that was rendered at that term, opened up the cause for rehearing and prevented the decree from becoming final, on the adjournment for that term.
Such was the inevitable effect of the order, and the court at the subsequent term correctly so treated it by rehearing the cause at the February, 1907, term. At this final hearing the record shows that “the cause was resubmitted upon the pleadings and depositions of witnesses.” Counsel says “it seems that it was inadvertently written that the cause was resubmitted upon the depositions.” But we are bound by the record. If the record does not speak the truth in this respect, counsel should have had the record corrected. We can only consider the cause as having been heard upon the “pleadings and the depositions of witnesses,” as set forth in the record.
On the question of 'taxes, the appellant in his answer and cross-bill offered to repay to appellee “all amounts paid out by him for taxes,” and appellant in his cross-bill asked' to have judgment for the “possession of all said lands on the payment of all the taxes, etc., that may be found due to W.-S. Rodgers.” It was upon these allegations of appellant’s pleading that we awarded appellee a decree for taxes. The motions by appellee and appellant for reconsideration are therefore overruled.