On Petition for Rehearing
By the Court,
McCarran, J.:Counsel for appellant, in their petition for rehearing, make the following assertion:
"At the same time, the fact exists that Neven was cited into court at Elko County, to make an accounting for the guardianship of Le Roy Neven, his nephew.”
If the statement of counsel for appellant here quoted were supported by the record before us to any extent whatever, then a rule might apply in favor of appellant different from that asserted in the former opinion of this court. The fact is, however, that this assertion is unsupported by anything in the record before us. The affidavit of appellant,.filed in the court below in furtherance of his motion, makes no such declaration. In the statements *551made by counsel for appellant before the trial court on the day of the trial, in explanation of the absence of appellant and in furtherance of the motion for a continuance, there is nothing indicating that appellant Neven had been "cited into court in Elko,” or that appellant had been called there by any process issued out of any court. And it may be not out of place to observe here that, had any citation or process issued calling for the presence of the appellant Neven, it would have been a simple matter to have produced the same in the trial court either in furtherance of the motion for a continuance or as a part of the affidavit of appellant, and the same would thereby have become a part of the record before this co.urt.
The testimony of the respondent, Mrs. Neven, in-detailing a conversation between herself and appellant, relative to his going to Elko, sets forth that on Thursday, April 2, when appellant invited her to go with him to Elko, she inquired of him: "Is it necessary for you to> go tonight?” To which he, the appellant, answered: "No„ it is not; but I will have to go some time soon.”
Petition for rehearing should be denied.
It is so ordered.