O'N Motion eob RehbabiNg.
(Submitted June 6, 1903. Decided June 8, 1903.)
MR. CI1IEP JUSTICE BRANTLYdelivered the opinion of the court.
The plaintiff has submitted a motion for a. rehearing "herein, in which the point is made that this court was in error in holding. in the original opinion that the evidence excluded was properly excluded because it was offered_in chief, whereas it related' wholly to matters alleged in the answer1 by way of an affirmative defense and should! have been offered, if at, all, by way of rebuttal. It is argued that under a stipulation filed by. counsel at the opening of the trial, the burden was cast upon the plaintiff to avoid the effect of the affirmative matter so set up; in the an*132swer, and this being so’, and- tbe evidence tending directly to sbow an estoppel upon tbe defendant, it was competent and should have been admitted. We do not think this position tenable. After an examination of the record under the assumption that the theory of the plaintiff as to the burden of proof is correct, we find that the evidence was not relevant to any issue in the case. There was therefore no> error in the ruling. But even if there were, the plaintiff is in no position to take advantage of it.
Our attention is nowi called to the fact that the appeal from the order denying a new trial should also havei been dismissed, for the reason that the record; fails to show that judgment had been entered! in the district court and, therefore, that there is noi judgment roll in the record as filed in this court. This course should have been pursued by this court, for upon appeal from an order denying a new trial the record must contain, among other things) a copy of the judgment roll. (Sections 1738 and 1176, Code of Civil Procedure.) No question presented on the appeal from the order denying a new trial was! properly before the court for consideration. The same result is reached, however, in the disposition of the case asi made, and we shall not now reopen it in order to rectify this technical error in practice.
The motion for a rehearing is denied.
Denied.