City of Bedford v. Neal

On Petition for Rehearing.

McCabe, J.

An earnest petition for a rehearing of this 'cause, supported by able briefs, is presented. The grounds stated in the petition, are :

‘ ‘ 1st. The court erred in treating the alleged bill of exceptions as in the record.

*432££2d. The court erred in failing to notice the point made in appellee’s brief that there is no bill of exceptions in the record.

£ £ 3d. The court erred in holding that a new trial should have been granted on the ground that the evidence does not show that the appellee was free from contributory negligence. ”

The last ground is not supported by any argument or authority cited in the brief. It must therefore be regarded as waived or abandoned. As to the other grounds specified, we have to say that the appellee’s counsel fully and exhaustively argued the questions involved in the motion for a new trial and the evidence, without making the slightest objection to the validity of the bill of exceptions or that it was not properly in the record.

And consequently we followed the able argument of counsel on both sides, on the evidence, without a hint from either side as to any question about the validity of the bill of exceptions, or that it was not properly in the record and decided the case, though the opinion was not handed down before any brief was filed raising any question about the bill of exceptions. Five or six days after the opinion was prepared, and the case decided, there was filed a paper called a brief, consisting of about a quarter of a page, claiming that the transcript does not show that the bill of exceptions had been filed in the clerk’s office of the court below.

We treated the paper as if it was on a petition for a rehearing, raising a point that had not been before raised.

The case had been fully discussed and decided without the point having been raised, and we then declined to examine into the record to see whether the point made was supported by the record or not. And we *433now decline to do so for the same reason. The case having been decided before the point was raised, it was too late to raise it then, and it is too late to raise it now. It comes precisely the same as if it were raised for the first time on the petition for a rehearing. And it has been so often decided that a point made for the first time on a petition for a rehearing will not he considered, that it is useless to cite the cases. The rules of this court are made largely to facilitate its labors.

Filed January 24, 1896.

The court might he required to decide a case a half dozen times if its rules permitted counsel to present new questions after the cause has been decided. Eor these reasons the petition is overruled.