Decided December 31, 1910.
On Petition for Rehearing.
[112 Pac. 416.3
Mr. Justice McBridedelivered the opinion of the court.
Both plaintiff and defendant have filed petitions for a rehearing herein, but after carefully considering the same we are still satisfied with our former conclusions. We do not wish to be understood, in our former opinion, as deciding absolutely that an equitable defense exists, or in any way attempting to control or direct the circuit court in its further disposition of this cause. We only suggest that there may be, in the questions raised by appellant, such facts and defenses as might be appro*454priately set up in a cross-bill, and leave the case in such a position that the circuit judge may, in his discretion, after an examination of the testimony, permit one to be filed. Such discretion to permit or refuse the filing of a cross-bill should be, and no doubt will be,, exercised by the lower court without reference to anything said by this court upon that subject.
Petition denied. Reversed: Rehearing Denied.