Hardin v. Melton

The plaintiff filed a petition for rehearing, upon w'hich the following order was passed, May 5, 1888,

Per Curiam.

To entitle a party to a rehearing after judgment pronounced by this court, it should appear in the petition filed for that purpose that this court overlooked some fact or some *50question of law material to the case, as presented by the appeal. Now, the only question mentioned in the petition as having been overlooked by this court is the third herein, to wit: “That the fund in the hands of W. A. Clark, administrator of C. D. Melton, should be adjudged primarily liable for the satisfaction of the Wright judgment.” It is conceded that the Circuit Judge did not pass upon this question. Nor is it stated in the “Case” as a ground upon which respondent would undertake to sustain the Circuit decree. Nor is any error alleged to the Circuit Judge in failing to consider and adjudge said question. It is true, one of respondent’s counsel, Mr. Glenn, in his argument contended that said fund should be first applied to said judgment before the land in question should be made liable. But this did not raise the question for review by this court, said court being confined to the correction of erroi'S below. We may say, however, that had this question been properly before us, under the case of McAliley v. Barber (4 S. C., 47), it could not have availed the respondent.

As to the other ground upon which the petition is based. It is manifest that this is nothing more than to have a question already fully considered by this court reargued, which this court has uniformly held cannot be done, except as stated above, where either a question of law or a fact material to the case and appearing in the record has been overlooked.

It is ordered, that the petition be dismissed.