ON MOTION FOR REHEARING.
TRIMBLE, J.It is earnestly insisted, in a motion for rehearing, that the opinion proceeds upon a mistaken view of the facts when it says the trial was had upon the alternative writ, the second amended return, and the reply; that the second amended return was not *603filed until after the evidence had been introduced; that only in tbe second amended return was there any allegation of the insolvency of the bank; and that it was error to thus allow the second amended return to be filed at this time.
In the first place appellant did not see fit to incorporate the prior returns in the abstract. Only the second amended return is set out therein, so that we cannot say with absolute certainty that no allegation in reference to the insolvency of the bank was contained in said prior returns.
But, however this may be, it is not material whether they did or not, since the court did not err in allowing the second amended return to be filed. The parties stipulated in open court that it could be so filed. Counsel for appellant is not the same counsel who tried the case, and for this reason may, perhaps, be excused for overlooking this solemn agreement made, between the parties at the beginning of the trial:
“By.the Court: It is agreed by the parties that after the evidence'is in either the relator or respondent shall have the privilege of amending any pleading in the case so as to conform to the facts.
“By Mr. Moran, counsel for relator. That is the agreement.
“By Mr. Cummins, counsel for respondent. All right.
“By the Court. Or that otherwise becomes necessary in their judgment.”
It cannot be successfullly claimed that the above agreement was limited to the evidence heard at that time. Because the agreement was that “after the evidence is in” either party should have the privilege of “amending any pleading so as to conform to the facts.” And the fact that there was an interval between the evidence taken at that time and the evidence heard later, and that said second amended return was not filed until after this last evidence was in, cannot *604alter the matter. Because the later evidence was but a continuation of the former trial, as shown by the following agreement entered into at said later hearing:
“By Mr. Moran, counsel for relator. There is an oral agreement between Mr. Cummins and myself that all the testimony taken at the former trial be received in evidence at this hearing.
“By the Court. All the evidence heretofore taken.
“By Mr. Cummins, counsel for respondent. That ' is my understanding.
“By the Court. This is but a continuation of the case and all the evidence heretofore taken is before the court, and now we are to hear additional evidence simply.
“By Mr. Cummins. That is my understanding.
“By Mr. Moran. Very well.”
At this portion of the hearing both appellant and respondent offered evidence in behalf of their respective sides, and when all the evidence was in, respondent, pursuant to the stipulation, and by leave of court, filed the second amended return. And appellant filed a reply thereto. It is true, objection was made to the filing of said second amended return, but such objection could not overturn the solemn agreement theretofore entered into. And the contention was not made then that this agreement related only to the evidence taken at that time, but that no agreement whatever had been made according to counsel’s recollection. So that, in legal effect, the case was tried on the alternative writ, the second amended return, and the reply, as stated, for the sake of- brevity, in the opinion.
The other matters complained of in the motion can have no possible effect on the result reached. The motion is, therefore, overruled.
All concur upon the point herein discussed but Johnson, J., having dissented from the conclusion reached in the case, is of the opinion that a rehearing should be granted.