ON REHEARING,
BROADDUS, J.The appellant calls attention to the following paragraph in the opinion herein,, wherein the court misconceived the facts of the record, viz.': “At the close of plaintiff’s evidence, defendant, through her counsel, made the following announcement: ‘We desire to file a demurrer to each count in the petition. ’ These demurrers were by the court overruled, and as they are not presented in the abstract we can not know specifically what they contained. But if they were what counsel named them, -they were properly overruled for one controlling reason at least, that they should have been filed and acted upon before the case was tried.” It seems that the papers were not demurrers to the different counts of the petition, but demurrers to the evidence on the different counts. We confess to having been mistaken in the matter, but we were led to commit the error, because of said misnomer.
It can make no difference, however, in the result, as the' opinion finds that all of said counts were sustained by evidence except as to the third and fifth.
The motion is overruled.
All concur.