On Petition for a Rehearing.
Davis, C. J.The learned counsel for appellants has filed an earnest petition for a rehearing, which has caused us to carefully again read the record and the briefs of counsel. This has strengthened our conviction that the result reached by us in the original opinion is correct. We do not deem it necessary to review, in this opinion, all the questions so urgently pressed upon our consideration, but are impressed with the belief that, so *179far at least as this case is concerned, one expression in the original opinion should be modified. For instance, it is insisted, by counsel for appellants, that under section 637, R. S. 1894, the motion to strike out a part of depositions, which was filed in December, 1891, and overruled in January, 1892, became a part of the record by the bill of exceptions filed in August, 1892, in pursuance of leave granted at the May term of said court, when the motion for a new trial was overruled.
Filed March 7, 1894.There is nothing in the record showing that the motion to strike out was overruled in January, or that an exception was reserved to such ruling, except the recital contained in the bill of exceptions above mentioned. Whether counsel is correct in his contention, it is not necessary to determine, for the reason that the original opinion on this point was based on the proposition that if the question was properly presented, there was no error in this ruling. We have, however, as before indicated, read again, with care, in the light of the argument of counsel, the deposition of the witnesses J. H. Frump and W. B. Ferguson, and we are confirmed in our opinion that, in any view of the case, there was no error in overruling the motion to strike out the questions and answers referred to.
The statement, therefore, that “the motion could not be carried into the record by a general bill of exceptions filed pursuant to leave granted at a subsequent term of the court,” may be considered as obiter dictum,, so as to leave the question open for consideration and decision when a case is presented which requires its determination.
With these observations, the petition for rehearing is overruled.