Fischer v. Bell

On Petition eor a Rehearing.

Franklin, C.

— Appellant, in his petition for a rehearing, claims that the court, in the former opinion herein, failed to decide an important question in relation to the correctness of the fourth instruction given by the court to the jury. True, this question is properly in the record, but appellant, in his brief, did not refer to that instruction; he discussed No. 5; and in referring to the motion for a new trial we found that it •did not include No. 5, and concluded that the objection to No. 4 was thereby waived. Upon a re-examination of the record *251we find that appellant made the mistake of calling the instruction he discussed No. 5 instead of No. 4. The mistake was in appellant, and not in the court. The way the record and the brief stand, no question upon either of these two instructions is properly before the court, but to give appellant the benefit of the question that he intended to present, we proceed to consider the fourth instruction. It reads as follows:

<c If you believe from the evidence, that after plaintiff had notified the defendant of the signing of the certificate of purchase by the said Drew, and (he was) requested to sign the same, the defendant purposely avoided the plaintiff and the said Drew, negligently and purposely failed to attend to said business in a reasonable manner, and the defendant purposely absented himself from the city and State, and by reason of such conduct upon the part of the defendant, said sale was defective, and the case is otherwise made out, you should find for the plaintiff.”

This instruction is applicable to evidence given in the cause, and is correct in so far as it goes. It does not profess to state all the facts necessary to make out the case, but expressly adds, ■“ and the cause is otherwise made out.” If the appellant desired instructions upon other facts necessary to make out the case which were not stated in the instruction given, it was his duty to ask the court to give -such instruction. Having failed to ask for additional instructions, he can not complain that the instructions were not more fully given.

Appellant further insists that he did not intend to waive the ninth reason for a new trial, which was an objection to the evidence introduced upon which the fourth instruction was based; that to save a repetition of his argument upon the seventh reason for a new trial, he referred to that as applicable to the ninth. If the argument and reasoning upon the seventh was applicable to the ninth, the decision of the questions upon the seventh was alike applicable to the similar questions on the ninth. Not to repeat in a decision is cer*252tainly as commendable as not to repeat in a brief, and no harm Ayas done in not discussing the ninth reason for a neAv trial.

Filed Nov. 3, 1883.

The petition for a rehearing ought to be overruled.

Per Curiam. — The petition for a rehearing is overruled, at the costs of appellant.