• The appellant moved for a rehearing. • The following opinion was filed at the September term, 1867.
Cole, J.A motion for a rehearing is made in this case, mainly, as is stated in the argument of the counsel for the appellant, for the purpose of asking this court to so far modify its order affirming the order of the circuit court as to permit the appellant to come in and answer and defend the action upon the merits. We deem such a modification of the order entered by this court, under the circumstances, unnecessary. Eor we cannot assume that the circuit court, upon a proper application, will refuse to let the appellant come in with his answer upon such terms as may seem just and equitable. There is nothing in the order of this court which would prevent the circuit court from exercising its sound discretion in the matter.
The appealability of the order refusing to set aside the complaint for its alleged inconsistency with the summons, was not contested on the argument. It may be very questionable whether such an order is appealable under our statute. But as that question was not raised by counsel, and as we are not clear upon the point, we have not felt like expressing any opinion upon it.
By the Court. — The motion "is denied.