Subsequently, upon an application for a rehearing, the' following additional opinion was filed:
Per Curiam :Petitions for a rehearing in this case have been filed on the part of P. L. Cable and the heirs of J. M. Waugh and J. B. Path bun.
After a careful consideration of the grounds of the petitions, upon the merits of the controversy between the parties and the questions heretofore presented, we feel satisfied with our former opinion and judgment, and see no reason for changing the same.
One new question is now for the first time presented to our attention by Cable, as a ground for a rehearing, which is as follows:
When the case was last before us we reversed the decree, and remanded the cause for further proceedings in conformity with the opinion then rendered. On the case being remanded to the circuit court" that court allowed an amendment of the bill by setting up, in substance, that the agreement of Waugh in the bill mentioned was by parol instead of in writing, as alleged in the original bill, and further proofs were taken. ■
It is now, on this petition for a rehearing, urged for the first time that it was error to allow the bill to be amended and hear further proofs, and that a second, the present appeal, should not be entertained. Without passing upon the merits of this question, we think it is too late now, upon this petition for a rehearing, to raise it for the first time.
It is a familiar rule of the conduct of judicial proceedings, that advantages in a party’s favor will be held waived by not insisting upon them in apt time—by taking steps in a cause without before relying on them. The question here was properlyas to entertaining the appeal—it was preliminary in its nature—and should have been raised on motion to dismiss, or at least at the time of the presentation of the case on hearing, in order that it might have been passed upon preliminarily, and before the consideration and decision of the «case upon its merits.
Had this course been pursued, if the objection was a valid one it might have been passed upon at the threshold, and the court been saved the great labor of the examination of this voluminous record and the decision upon the general merits of the questions involved in this controversy. But without making objection in this court to the entertaining of the appeal, or to the action taken by the circuit court after the cause Avas remanded, the counsel for this petitioner Avent on and presented an argument and submitted to us for decision the case upon the entire merits of the controversy between the parties, irrespective of any irregularity in the proceeding subsequent to the remanding of the case, or in taking the appeal.
The ground of the objection to the course pursued by the loAver court in allowing a new question to be presented and heard by the amendment of the bill and taking further proofs, is, that it encourages delay and protracts a final decision. But the very same objection lies to the present application of this petitioner. He lay by and presented the case on argument and for decision Avithout raising the present question. How, for the first time, after a final decision, he presents this question upon a petition for a rehearing, which he ought to have raised to the court before the submission of the case for decision. All his points ought to have been then made.
To allow such a practice as the present, has the same tendency to encourage delay and prolong litigation as the action in the circuit court which petitioner now complains of, and asks an opportunity, after the case is decided, to present to this court for review.
To- prevent great injustice we might permit this to be done. But we are entirely satisfied with the present decision as doing equity between the parties. We think it carries out the intent and purpose of Waugh that his mortgage should be canceled.
And we expressed ourselves to this effect in both our two former opinions in the cases of Sumner et al. v. Waugh et al. 56 Ill. 531, and Cable v. Ellis et al. 86 id. 525, as stated in our opinion herein. A reason we could not determine in favor of Ellis’ priority in those cases was, that Waugh’s alleged agreement to cancel his mortgage was set up as being in writing, and we could not find that he had signed the alleged written contract.
But after the. amendment of the bill alleging the agreement to be by parol, we found no variance between the allegations and proofs, and saw our way to decide as we did, in favor of Ellis.
The objection which petitioner now seeks the opportunity to avail himself of, is one as to the mode of procedure only, and not touching the real equities of the case.
The question on this appeal is not the same as that decided on the former appeal. On that appeal it was, whether Waugh was bound to cancel his mortgage by virtue of a written contract alleged in the bill. On this appeal it is, whether he was so bound by virtue of a parol contract.
We think we may properly refuse to this petitioner a rehearing, in order to afford to him an opportunity to present for
consideration this new point which he failed to make before in the case. A rehearing is denied, as to both petitioners.
Rehearing denied.
Dickey, Ch. J.: I think the rehearing ought to be granted. The record is very voluminous, and I can not examine it in detail at present. If other duties permit, I will present my views hereafter.