On Petition for Rehearing.
Olds, J.The record in this case recites that the court overruled the motion of the appellant for a new trial on her cross-complaint. We did not refer to this in the original opinion, as we deemed it apparent that it was an error, and if not an error, it did not aid the appellant, but as our attention is specially called to it on petition for rehearing, and as counsel insist, the question as to their right to a new trial on the appellant’s cross-complaint is presented by the record, we now notice it.
The only motion for a new trial in the record, as we stated in the original opinion, is a general motion for a new trial as to the whole case. The ruling must have been made upon that motion, and the error assigned is the overruling of a motion fora new trial on the cross-complaint, but if there was a motion filed by the appellant for a new trial as to her cross-complaint and a ruling made upon it and correctly shown by the record by its recital to that effect, then the motion to that effect is not in the record. There is a diminution of the rec- *528. ord, and the motion should have been brought into the record by certiorari. Without the motion in the record it can not be considered. There is nothing in the record showing any cause or reason for a new trial as to the cross-complaint. Either way the record is construed there is no question presented for decision. If the only motion filed was for a new trial as to the whole case and there is a clerical error in the record of the ruling showing the ruling to have been made .on a motion for a new trial on the cross-complaint, there is no proper assignment of error. If, on the other hand, there was a motion for a new trial as to the cross-complaint ruled upon and assigned as error, then there is no such motion in the record.
Filed May 11, 1892.The petition for rehearing is overruled.