First National Bank v. Buttery

ON REHEARING.

Spalding, J.

-This case was argued at the March, 1907, term-of this court by counsel fpr respondent, and was submitted by appellant on its brief.

The findings of the trial court wholly failed to show on what ground or grounds it -held the note in question nonnegotiabl-e. The-brief of respondent discussed only the ground mentioned in our opinion, and the writer has a distinct recollection that respondent’s. *334counsel stated in his argument that, although on the trial in the district court he had contended and believed the note to be non-negotiable for each of several reasons, on examining authorities in the preparation of his brief on appeal, he had concluded that the note was nonnegotiable only on the ground referred to in our opinion. Whether such statement was made or not is, however, entirely immaterial. Respondent argued but one question either orally, or in his brief, and relied only on that as a ground for affirmance. It therefore expressly or impliedly waived all other reasons which might have been advanced to sustain the judgment of the trial court, and thereby conceded the correctness of the contention of the appellant on all except the one ground. The learned counsel who argued the case and prepared the brief for respondent has since deceased, and. a petition for rehearing is presented by new counsel, who, doubtless, was unaware of what transpired on the argument, and who, in his' petition for rehearing discusses questions thus waived. Under such or any ordinary circumstances, it would be highly injudicious and unjust to now open the case for the purpose of permitting respondent to present points which were waived on the original argument. It, in effect, would be permitting the respondent to speculate on the outcome of the case, and, when defeated, to reopen it to present matters which he might have presented, but waived on the first argument.

(116 N. W. 341.)

This court has repeatedly held that the appellant waives all errors not discussed on his argument or in his brief, and we see no reason for making any distinction between appellant and respondent in such case. This view of the matter is supported by ample authority.

In this case no decisive question submitted by counsel for respondent has been overlooked by the court, and it never considered any of the reasons now alleged for holding the note nonnegotiable. It was not asked to do so. It relied, as it had a right to do, upon the contention of the respondent. -We are not saying that a case might not be presented where counsel had overlooked points in his favor which, on being presented in a petition for rehearing, might entitle him to a reargument, but we are saying that under the circumstances of this case, it would be out of harmony with all rules intended to protect parties, and preserve their rights to permit it. See 18 Enc. Pl. & Pr. 37, and cases cited; also Id. p. 43 (d) ; also 3 Cyc. 214 (i).

For these reasons, the petition is denied.