ON REHEARING.
Both parties have filed their petitions for rehearing. That by plaintiff does not claim the decision to be wrong, as we understand, but that it is in conflict with Eldridge v. Kuehl, 27 Iowa, 160. Even if this were true, it would not follow a rehearing should be granted.
But we do not understand there is any such conflict, and nothing said in the foregoing opinion should be construed as in any manner impairing the ruling made in Eldridge v. Kuehl.
A judgment was rendered in the court below in favor of the plaintiff and against the defendant for $2,287.28, the same being the amount found due the plaintiff for taxes paid on the property in controversy, including interest, penalty and costs. We declined to interfere with this judgment, because no evidence was contained in the record showing any appeal therefrom.
The defendant, in his petition, concedes the record did not show that he had appealed, but insists that one was properly taken, and whether this be true or not, the appeal of the plaintiff being from the decree as a whole, and the cause being triable anew in this court, that we should have rendered such *604judgment as the court below should have rendered. It is our duty to determine the questions thus presented.
I. The decree was rendered in the District Court, on the 30th day of March, 1876. The plaintiff was served with notice that the defendant had appealed on the 13th day of October, 1876, and the clerk acknowledged service thereof on the 19th day of the same month. The pretended appeal was not, therefore, taken in time, as more than six months had elapsed between the time the decree was rendered and it is claimed the appeal was taken.
2. pbaoticjs in court:UPnot?oe oí appeal: re hearing. II. Evidence of the appeal having been taken is, for the first time, before us in the petition for a rehearing. The excuse given for the condition of the abstract in this respect is, that it was prepared for and used . , D. . „ . . in the District Court, to winch plaintiff added the decree and his notice of appeal, and “ defendant did not deem it necessary to print the notice of appeal or evidence of service and annex it thereto.” If any sufficient excuse could be given for the omission, certainly the one above stated is insufficient.
In the opinion of counsel it was unnecessary for the fact that an appeal had been taken to be stated in the abstract, and having taken the chances the plaintiff' must abide the consequences. The mistake was not one of fact, but of law.
If this mistake had been that of the clerk, instead of the defendant, it lias been held a rehearing should not for that reason be granted. Warner v. Campbell, 39 Ind., 409. Anri it is said: “ It is not the'practice in any court tó allow a new trial or a rehearing merely that the party may amend his pleadings and present the case in a new form.”
We are unwilling to sanction the practice that a new case can be made in a petition for a rehearing, or that matters may be insisted on therein which were not presented in the original argument and not considered in the opinion. Should we do so, causes might be presented and determined by piecemeal. When the end would be reached would depend on the carelessness, persistency or whims of counsel, and the necessity of the party for time. The object and office of a petition for a rehearing is to satisfy the court that it is reasonably certain *605some matter presented by counsel lias been overlooked by the court, or that some mistake of fact or law has been made in the opinion.
8__. ap_ ?nmptiÍií<as to extent of. III. In answering the petition, the defendant alleged that “he had offered to repay the plaintiff more than the whole sum paid by him, * * and said defendant is st^ ready and willing to repay to said plaintiff sa}(j taxes, interest, penalty and costs in case this court holds that in equity and good conscience said defendant is bound so to do.” In consequence of this offer, we presume, and with full knowledge that the plaintiff had asked no such relief, the District Court rendered the judgment in question. We are of the opinion such judgment was fully authorized under the pleadings. At least the defendant cannot justly complain because the relief granted exceeded or was different from that asked by the plaintiff.
The decree below contained two judgments: one in favor of and the other against the plaintiff. They were separate, distinct and related to different subjects, although both grew-out of the same transaction. From these judgments it may be said in one sense the plaintiff appealed, because he did not specify that he appealed from any particular portion of the decree only. But it will not be presumed he appealed from that portion in his favor. Especially is this true when the relief he sought by the appeal, if granted, would render the judgment of the court below nugatory.
The plaintiff made no complaint'of the relief granted, but the kind or quantity was not such as he desired.
Besides this, we are not prepared to hold that we should disturb or modify a judgment from which no appeal has been taken by the party against whom it was rendered, unless it be necessary to do so in order to afford adequate and proper relief to the party taking the appeal. Both petitions for a rehearing are
Overruled.