On Petition for Rehearing.
[103 Pac. 1007.]
Mr. Justice Eakindelivered the opinion of the court.
5. By the motion for rehearing, counsel urge: That, as the court must read the evidence for the consideration of the motion for nonsuit, therefore it ought to consider the errors disclosed by the transcript of the evidence; that some of the exceptions relate to general principles of law and can be passed upon independently of the evidence; and that appellant has stated in his brief sufficient of the evidence for the consideration of the exceptions relied upon, and, respondent having made no objections to such statement, therefore appellant’s brief should be taken as the bill of exceptions. The effect of these contentions is that the court should permit counsel to waive the bill of exceptions or stipulate to submit the case on the transcript of the evidence. The bill of exceptions is required by the statute, and not by a rule of the court, as counsel suggests. This is a plain statute and has been construed and explained by this court in many cases.
6. Counsel for respondent is not called upon to object to the statements of fact made in his adversary’s brief, and such statements cannot be taken as assented to. The exceptions not considered by the court were such as could not be raised in this court except by the bill of exceptions.
The motion for rehearing is denied.
Affirmed: Rehearing Denied.