ON APPLICATION FOR REHEARING
BY THE COURT:Submitted on application for rehearing.
It is insisted that determination of the errors assigned on this appeal may be made from the pleadings without recourse to any evidence that may have been offered by the parties upon the motion of defendant-appellant to dismiss the action, and the motion of Ellis O. Jones, defendant-appellee for the appointment of a successor trustee to Charles Meyers, Trustee, plaintiff. From the entry of April 6, 1943, and from other indicia in the transcript of docket and journal entries, it conclusively appears that the Court had under consideration the trust indenture as well as the developments thereunder which occasioned the motions and brought them to the attention of the Court on hearing. Pursuant to the issues presented on the motions the Court, in an extended written opinion, considered and determined the effect of the trust deed from Clarence M. Jones to Ellis O. Jones, Jr., and upon such consideration in the light of all that was presented to him by the parties upon the hearing on the motion, which included the factual developments upon hearing, the Court held that the trust created was irrevocable and that the Court then had the right and the duty to appoint a successor trustee, which he did.
Further, an examination of the brief of appellant discloses that as to every error assigned reference is made to the trust instrument.
We are now called upon to say, as a matter of law, that no situation appearing justified, nor could justify, the action which the Court took and the order which he entered. We are not in accord with this contention and do not accede to the proposition that upon the pleadings only, we may say that the Court had no justification in naming the trustee upon the motions as presented.
The application for rehearing will be denied.
BARNES, P. J., HORNBECK and GEIGER, JJ., concur.