On Petition eoe a Rehearing.
Bicknell, C. C.— In the petition for a rehearing, the counsel for the appellee say: “ The effect of this decision, we believe, will be to entitle the appellant to judgment against the appellees Walker and Huncheon in the court below, upon the renewal of the motion, without any opportunity to them of appearing in obedience to the subpoena, or of showing any excuse, or reason for not appearing on the former trial.” Such is not the effect of said decision. Walker and Huncheon ought to have obeyed a subpoena duly served; if they had any excuse or reason for not obeying it, the same ought to have been shown in answer to the motion to strike out their answers.
The cause has been remanded for a new trial' without instructions to the court below to strike out the answers and render judgment for the appellant.
If Walker and Huncheon shall refuse to appear and testify, in obedience to a subpoena hereafter duly served, then their *374answers may be stricken out upon a proper motion therefor, unless some valid excuse be shown for such refusal.
The petition for a rehearing ought to be overruled.
Per Curiam. — The petition for a rehearing is overruled.