A petition for a rehearing having been filed, the following opinion was rendered, thereon.
Boreman, J.:A rehearing is asked upon the ground that the defendant did not have a fair hearing in the argument; that is, that he was not heard orally, as he believes he had the right to be heard. The filing of the petition for rehearing was the first notice the court has had that the defendant considered that he had not had a fair hearing in the argument in this case. We do not think this position of the defendant is warranted by the facts. The defendant had the same opportunity that the plaintiff had to be heard orally, but of his own will he chose not to avail himself of the opportunity, and preferred not to extend his oral argument beyond the demurrer. It was not the court’s action that prevented his oral argument from covering the whole case. The hearing was upon the whole case, and it was his own will, and not the court’s order, that confined his oral argument to the demurrer. Having given one opportunity for oral argument, it was not necessary that the court should give another, unless some good reason were offered therefor. But no reason whatever was advanced why a second hearing should be granted, and it was not made known to the court, at the time, that there was ány anxiety on the part of the defendant to be heard orally. Yet if, when notified of what the action of the court would be upon the demurrer, the defendant had expressed to the court a desire to be heard orally upon the case, it is probable that his desire would have been granted, if such hearing would not have interfered with the regular business of the term.
When the court was about to adjourn for a length of *401time to enter upon district court business, and to consider tbe cases submitted, tbe defendant for tbe first time signified a desire to be further beard, but tbe court was not tben given to understand tbat tbe defendant was anxious to be beard orally. It was tben announced _ by tbe court tbat any further arguments or briefs tbat counsel might desire to present might be filed within a specified time, and they would be considered. This was supposed to be satisfactory, and it was not understood tbat any objection was, at tbe time, made to such arrangement. Tbe defendant filed bis brief accordingly, and tbe same was duly considered. "We do not think tbat any valid reason has, in tbe petition, been advanced why a rehearing should be granted, and it is therefore denied.
Tbe defendant has also filed his motion for a new trial, in which be raises tbe same questions tbat were raised upon tbe bearing. This being an original proceeding in this court, we are of the opinion tbat such motion is proper under section 988, of our Code of Civil Procedure, which makes tbe provisions of tbe Code relative to new trials in tbe district court applicable to this proceeding, except where tbe same would be inconsistent with other provisions of title 1 of tbe Code. We understood the defendant to have submitted the motion for new trial already; but, in order tbat be may be fully beard, we have no objection to extend to him tbe privilege of' being beard orally or otherwise upon his motion for new trial.
ZANE, C. J., and Powers, J., concurred.