On Rehearing.
O’NIELU, J.The application for rehearing was based mainly upon the averment that, after the case was submitted to this court for decision and before we rendered judgment reversing the decree of the district court and dismissing plaintiff’s suit, the defendant, appellant, agreed to abide by the judgment of the district court and have the appeal dismissed. In support of the averment that the contest had been thus settled and disposed of, the plaintiff, appellee, annexed to his petition for rehearing the correspondence had between his attorneys and the attorney for defendant, appellant; and he prayed that a rehearing be granted in order that the appeal might be dismissed, and the judgment of the district court be executed. In the alternative, he prayed that, if the appeal should not be dismissed, judgment should be rendered in his favor and in accord with his original petition.
We were not informed of any negotiations for compromise or settlement of the suit until the petition for rehearing was filed.
[5] As this court is without original jurisdiction to consider and pass upon the letters annexed to the petition for rehearing and filed as evidence of the alleged acquiescence in the judgment of the district court, the question of acquiescence should be determined by the district court; and for that purpose the case must be remanded.
It is ordered that this case be remanded to the district court for determination of the question whether appellant had agreed to abide by the judgment of the district court, when judgment was rendered herein by the Supreme Court, as alleged in appellee’s petition for rehearing.