Upon a motion by the appellant for a rehearing there was a brief for the appellant by G. 8. Mwrtin and Bushnell & Mall, and a brief for the respondent Menz by Mylrea <& Bird, counsel.
The following opinion was filed March 11, 1899:
Marshall, J.A motion for a rehearing, made by counsel for appellant, has been considered with the following result:
The trial court charged 'Beebe with $1,093.55 for personal property obtained by him from respondent, and sums of principal and interest received on the Bohn contract, mating in all $2,253.55, and deducted therefrom $200 paid by Beebe to respondent at the time of the trade, leaving a balance due the latter on the accounting, of $2,053.55. On that, the court said interest should be computed in respondent’s favor at the rate of six per cent, per annum as follows: On $1,093.55 from October 5, 1893; on $500 from October 8, 1894; on $330 from October 8, 1895; and on $330 from October 8, 1896. The several items aggregated $2,253.55. The court evidently forgot to deduct the $200 from the $1,093.55, which resulted in wrongfully charging Beebe with interest on $200 from October 5, 1893, to the date of the judgment, the error being $50.36. That error would have been corrected by the trial court if attention had been called to it. No appeal for that purpose was necessary. The subject not having been called to the attention of the lower court before the appeal was taken, but raised for the first time, as it appears, in this court, it cannot count in appellant’s favor sufficiently to entitle him to costs. Windross v. *351McKillop, 98 Wis. 525. A reversal is not necessary to correct that error now. The judgment here may be modified to the extent of $50.36, and affirmed as modified, under the express language of sec. 3071, Stats. 1898. In making the suggestion in Windross v. McKillop, that a reversal is necessary in such a case, referring to Supreme Court Rule XXXII, we all overlooked the fact that such rule, as indicated by the decisions cited .thereto, applies only to cases where a new trial below, or some proceedings there, are necessary. The error in the interest was not specifically excepted to, nor was error clearly assigned therefor, nor was any mention of it made in the original brief filed by appellant’s counsel. It was mentioned in the reply brief, but in taking up and considering, point by point, the errors insisted upon in the principal argument, it was not reached.
It is urged upon us a second time that in the accounting appellant was wrongfully charged with the whole amount of interest received by him on the Bohn contract, when the charge, equitably, should have been reduced by the amount paid for interest on the $3,000 mortgage, which really represented the incumbrance on the property when Beebe obtained it from Menz. What was said in the former opinion as to the use of the property offsetting interest, had no reference to this, but to what occurred before the making of the Bohn contract. But there is no evidence in the record that Beebe paid any interest on the $3,000 after the date of the Bohn contract. If appellant had produced such proof, doubtless the credit would have been given. The attitude of counsel, it would seem, upon discovering the difficulty, should have been that of a suppliant for the favor of the court, to be allowed to remedy the mistake.in failing to make proof of payment of the. interest, not that of a de-mandant for the correction of an error in that the court below did not grant the credit to the appellant without any proof to base such credit upon. We cannot disturb the judg*352ment for error in not allowing appellant credit for interest, which, for anght that appears by the record, has not been paid.
The result is that the judgment and mandate heretofore entered in this court must be modified so as to read as follows : The judgment appealed from is modified by deducting therefrom $50.36, and is affirmed as modified. No change will be made in the judgment for costs heretofore taxed in this court, and no costs will be allowed on the motion for a rehearing, which motion must be denied.
By the Court.— It is so ordered.