On Petition for a Rehearing.
Bicknell, C. C.A rehearing is claimed because the brief of the appellee, as originally prepared, contained no statement of the objection, that the assignment of errors is joint, and because, afterwards, such an objection was added to the brief. The petition claims that this objection was “surreptitiously inserted in the brief and pressed upon the court.”
It is not unusual to file an additional brief, or to add new matter to an existing brief, and under Rule 16 of this court, as it stood prior to May 14th, 1884, the appellee had the right to file a brief at any time before the cause was taken up for consideration.
But whether an objection be made in the brief of the appellee or not, if the record shows the defect, this court is not required to disregard it because the appellants’ counsel was not aware of it.
The rule is that if there are points in the record not suggested by counsel nor perceived bythe court, such points will not be considered on a petition for a rehearing, but the court can not refuse to consider points of which it is made aware either by the suggestions of counsel or by its own examination of the record. Martin v. Martin, 74 Ind. 207.
The petition for a rehearing ought to be overruled.
Per Curiam. — The petition for a rehearing is overruled.