ON REHEARING.
Seevers, J.Conceding the plaintiff did assert in the petition tor a new trial he had taken and perfected an appeal, the question is what effect such assertion should have in this action. Such allegation was wholly immaterial. The plaintiff by filing the petition for a new trial claimed, in substance, the court had jurisdiction and the power to grant the relief asked. Instead of so showing the allegation as to the appeal, if true, would have shown the court did not have jurisdiction. The new trial was refused on other grounds and therefore the asserted fact had no effect whatever on that litigation. For this reason and because we do not think any of the defendants relied on the assertion and predicated action thereon, we do not think the plaintiff should be estopped from proving the truth.
The petition for a rehearing is overruled.