UPON REHEARING.
Per Curiam.On an application for a rehearing, the correctness of the holding in the second division of Appeal: error without prejudice: rights of appellee. the opinion, to the effect that the action of the district court in overruling the motion of the plaintiff to direct a verdict in its favor could not be considered, because the plaintiff had not appealed, and the question was not presented by an assignment of error, is questioned, and with much force, both upon reason and authority; the precise thought being that the appellee could not complain of the judgment entered by the district court because in its favor; and that, if the appellee was entitled to judgment on the face of the record, the errors of which the appellant complains were without prejudice, and for errors not prejudicial a judgment should not be reversed. It becomes, then, a question if the appellant may, without appealing, protect a judgment in its favor of which it does not complain, by showing that, on the face of the record, notwithstanding the adverse action of the district court on its motion, it was entitled, as a matter of law, to such judgment, when the effect is to avoid the errors assigned by the appellant as without prejudice. To the query we now give an affirmative answer. But the conclusion of the case, as heretofore announced, is not to be changed because of this holding. We think the#e was no error by the district court in. overruling the *734motion. The point has practical consideration in the first division of the opinion, as heretofore filed, with which we are content to rest. The difficulty with the case is that it was submitted upon an issue not presented in the pleading’s. The petition for rehearing is OVERRULED.