On Petition eor a Rehearing.
Best, C.In support of the petition for a rehearing in this case, the appellee strenuously maintains that the complaint to which his demurrer was sustained was not properly a part of the record, and for this reason no error was com*240mitted in sustaining the demurrer. This point was made in the appellee’s original brief, but as the record presented no such question, as we thought, we passed it in silence. Now we notice it because it is again pressed ujton our attention. A demurrer was overruled to the original complaint in this cause, an answer and reply were filed, after which the court reconsidered its ruling upon the demurrer and sustained it to the complaint. The appellant then filed an amended complaint. The appellee made an unsuccessful motion to strike it from the files, reserved the question by bill of exceptions, and then filed the demurrer, which was sustained. This last ruling is alone assigned as error. This is the condition of the record, and it is manifest from its mere statement that it presents no such question to this court as the appellee attempts to raise. Such question can only arise upon a cross assignment of error. The various cases, holding that certain motions, papers and documents are not parts of the record without being made so by bill of exceptions, have no application to a pleading which constitutes a part of the record without such bill, and the fact that the court will determine such questions without a cross assignment of errors, furnishes no precedent for a similar rule in this case. A cross assignment is inapplicable to such questions, and could not be employed for such purpose.
Filed Oct. 11, 1884.In addition to this, if the ruling had been properly presented the appellee’s position could not be maintained. The bill of exceptions fails to show that any reason whatever was assigned in support of the motion to strike out, and as it appears to have been right, it follows that the ruling would present no question here.
No other question is discussed that was not fully considered and decided in the original opinion. The petition should be overruled.
Per Curiam. — The petition for a rehearing is overruled.