Herod v. State ex rel. Whistler

On Petition foe Reheaeing.

Gavin, J.

Counsel argue that the court erred in its original opinion in “holding that it was necessary that the complaint in said cause should be so amended as to show more clearly the character of the bond sued on, and the circumstances under which it was executed.” It is counsel, and not the court,- who are in *655error as to this point, for the court did not so hold. We simply stated our belief that such amendment would be made, thinking that thus the questions of law sought to be raised would be the more distinctly presented. Of course, if counsel are still satisfied with the pleadings, they ha.ve the right to stand upon them. That counsel do not, however, argue the case made by the record, is indicated by the fact that they state in their brief: “It appears from the record, it (the bond sued on) was the only bond filed in the case.” Yet this fact is not disclosed by the pleadings in any manner, while, according to the evidence, R. p. 54, 1. 21, 23, there was another bond filed with the bid.

Filed June 19, 1896.

There is, in the original opinion, nothing which in any degree contravenes our holding in Lane v. State, ex rel., 14 Ind. App. 573, and Shroyer v. Simons, 14 Ind. App. 631.

That the error in overruling appellants’ motion for an instruction in their favor, was subsequently waived, was not claimed in the brief upon the original presentation of the cause. It now comes too late.

After considering all the points made by appellee, we are still of the opinion that the judgment should be reversed.

Petition overruled.