ON MOTION NOE REHEARING.
Smith, P. J.The defendant calls our attention to the fact that we overlooked that part of the plaintiff’s testimony wherein he states that before bringing the suit he “made no inquiry” as to the residence of Purdy. It is thus seen that the plaintiff, according to his own admission, used no diligence in endeavoring to ascertain the whereabouts of Purdy or whether or not service of summons could be had on him in this state. It would therefore serve no useful purpose to remand the case for another trial. It is unimportant whether the instructions submitted the question of the plaintiff’s diligence to the jury or not, in view of the evidence. The only judgment that could have been given under the undisputed evidence is that which was given. It was clearly for the right party.
It is accordingly ordered that the judgment of reversal heretofore ordered by us be set aside and a judgment affirming that of the circuit court be entered.
All concur.