ON APPLICATION FOR REHEARING.
THURMAN, J.The court unhesitatingly concedes that the opinion handed down in this case is vulnerable to one or more of the objections urged against it by respondent in his application for rehearing.
In deciding the motion for a nonsuit, and determining that there was no evidence of damage, the court inadvertently overlooked the fact that respondent ,was at least 6, 7 entitled to nominal damages because of the unlawful conversion of the stock. The court was therefore in error in holding there was no evidence of damage. It is also contended by respondent that insufficiency 'of the evidence as to damage was not assigned as error, and therefore the court had no authority to review and determine that question. After a careful consideration of the record, we find the contention of respondent is correct, and we avail ourselves of this opportunity to make the correction. These matters were not argued before the court, and were therefore overlooked. The fact, however, that there was no assignment of error as to .insufficiency of the evidence of damage was sufficiently stated by respondent in his brief to entitle it to be considered by the court.
In its reply to the application for a rehearing appellant makes formal application for leave to amend its assignment of errors as to insufficiency of the evidence, and presents a motion for that purpose. The motion is vigorously opposed by respondent on the grounds that the application was not made in time, and no excuse whatever is offered for the delay. The *588court is of the opinion, under the circumstances attending this ease, that the contention of respondent is unanswerable and should prevail. Even admitting that in certain cases the appellant may be permitted to file an assignment of errors after the time expires, or to amend an assignment already filed, upon seasonable application, where no prejudice inures to the opposing party, still, in our opinion, it would be an unwarranted extension of the privilege to permit an 8 appellant to amend its assignment under circumstances such as exist in the present case. Here the appellant failed to assign as error the matter in controversy at the time he filed his assignment of errors. The respondent’s brief callea attention to the fact that there was no assignment of error as to that question, the case was argued and submitted, an opinion was rendered reversing the case partly on the ground that the evidence as to damage was insufficient, respondent applied for a rehearing, and again makes the point that there was no assignment of error as to one of the points upon which the case was decided. Then, for the first time, appellant asks for leave to amend. To allow the amendment applied for in this case without any excuse whatever for the delay in making the application would be in effect to hold that an assignment may be filed or amended at any time before the opinion is officially published. Such a holding would be a substantial abrogation of the rule requiring an assignment of errors to be filed, and incidentally would nullify the statute upon which the rule is founded. The consequences are altogether too serious. The application for leave to amend must be denied.
Both the parties have been exceedingly diligent in collating authorities in support of their respective contentions in respect to this question, and while we have not deemed it necessary to consider the ease in the light of authority, because of the utter lack of any showing of diligence or excusable neglect, still, as the question is one of practice and of great importance, especially to the legal profession, we cite the principal authorities relied on by each of the parties.
Appellant cites the following cases: United States v. Pena *589et al., 175 U. S. 500, 20 Sup. Ct. 165, 44 L. Ed. 251; Independent School Dist. v. Hall, 106 U. S. 428, 1 Sup. Ct. 417, 27 L. Ed. 237; City of Memphis et al. v. St. Louis & S. F. R. Co., 183 Fed. 529, 106 C. C. A. 75; Bean v. Fairbanks et al., 46 Utah, 513, 151 Pac. 338; Ogden Valley T. & R. Co. v. Lewis, 41 Utah, 183, 125 Pac. 687; Powell v. Nolan, 27 Wash. 318, 67 Pac. 712, 68 Pac. 389; 2 Cyc. 1005, H, Amendments; 3 C. J. 1399; Whaley v. Vidal, 26 S. D. 300, 128 N. W. 331; Hubbard v. Garner, 115 Mich. 406, 73 N. W. 390, 69 Am. St. Rep. 580; Hall v. C., R. I. & P. R. Co., 84 Iowa, 311, 51 N. W. 150; Stanley v. Barringer et al., 74 Iowa, 34, 36 N. W. 877; Hudson v. Smith, 111 Iowa, 411, 82 N. W. 943; Roberts v. Parker, 117 Iowa, 389, 90 N. W. 744, 57 L. R. A. 764, 94 Am. St. Rep. 316; Chenoweth v. Chenoweth (Ind. App.) 115 N. E. 758; Magee v. Paul (Tex. Civ. App.) 159 S. W. 325.
In reply to these cases respondent cites the following: Harrison v. Harker, 44 Utah, 541, 142 Pac. 716; Swanson v. Sims, 51 Utah, 485, 170 Pac. 774; Bristol, Plaintiff in Error, v. City of Chicago, Defendant in Error, 21 Ill. 605; Louisville R. R. Co. v. Smoot, 135 Ind. 220, 33 N. E. 905, 34 N. E. 1002; Baldwin v. Sutton et al., 148 Ind. 591, 47 N. E. 629, 1067; Gladding v. Union R. R. Co., 25 R. I. 122, 54 Atl. 1060; Hanover F.I. Co. v. Johnson, 26 Ind. App. 122, 57 N. E. 277; Marks v. Taylor, 23 Utah, 152, 63 Pac. 897; Genter v. Conglomerate Mng. Co., 23 Utah, 165, 64 Pac. 362; Wasatch Irr. Co. v. Fulton, 23 Utah, 466, 65 Pac. 205; Van Pelt v. Park, 18 Utah, 141, 55 Pac. 381; O. S. L. v. Russell, 27 Utah, 457, 76 Pac. 345; Houtz v. U. P., 35 Utah, 220, 99 Pac. 997; Herriman Irr. Co. v. Keel, 25 Utah, 96, 69 Pac. 719; Jenkins v. Mammoth Mining Co., 24 Utah, 513, 68 Pac. 845; First National Bank v. Brown, 20 Utah, 85, 57 Pac. 877; France v. S. L. & O. Ry., 31 Utah, 302, 88 Pac. 1; Firman v. Bateman, 2 Utah, 268; State v. Campbell, 25 Utah, 342, 71 Pac. 529; S. P. L. A. & S. L. R. R. v. Board of Education, 35 Utah, 13, 99 Pac. 263; Blue Creek L. & L. Co. v. Anderson, 35 Utah, 61, 99 Pac. 444; Morris v. Salt Lake City, 35 Utah, 474, 101 Pac. 373; Bowe v. Stilwell, 39 Utah, 377, 117 Pac. 876; Vance v. Heath, 42 Utah, 148, 129 Pac. 365; Connell v. O. S. L. R. R., 51 Utah, *59026, 168 Pac. 337; Mountain Lake M. Co. v. Midway Irr. Co., 47 Utah, 371, 154 Pac. 584; Egelund v. Fayter, 51 Utah, 579, 172 Pac. 313; Holt v. Great Eastern Casualty Co., 53 Utah, 543, 173 Pac. 1168.
Notwithstanding the inadvertence of the court and the errors in the opinion above referred to, it does not necessarily follow that respondent is entitled to á rehearing of the cause. If the order reversing the judgment and remanding the cause was, nevertheless, right, the application for rehearing should be denied.
The opinion recites the fact that certain exhibits were admitted in evidence over appellant’s objection as to their competency. The particular grounds of the objection and the alleged infirmities of the evidence are stated in the opinion, and need not be repeated here. The opinion cites many cases tending to show that such matter is incompetent as evidence. The court was of the opinion that the exhibits should not have been admitted. We held, in effect, that the admission of the documents was prejudicial error. Respondent referred us to no eases whatever in support of his contention' prior to. the opinion. In his application for rehearing he refers to many eases which bear more or less upon the question, some of which go far towards lending support to the contention that in certain eases price lists, trade journals, and even newspaper reports, may be admitted in evidence as tending to prove market value. We believe, however, that in every ease cited the documents admitted or relied on were either assumed to be authoritative and properly identified or proven to be so to the satisfaction of the court. The contention here is that the authority of the exhibits admitted and their genuineness as reports of actual sales were not satisfactorily established by extrinsic evidence, and that in any event .the matter was hearsay. We think this contention of appellant has not been overcome by anything offered by respondent. The fact that it appears in this very case that the purported sales and purchases, or offers to sell and purchase, were manipulated and controlled by the same person, and that such things could and do happen, tend to show the ex*591treme danger of admitting sucb matter haphazard without proper authentication as to its genuineness. The cases and authorities cited by respondent are as follows: Wigmore, Ev. section 716; 17 Cyc. 425; St. Louis, etc., R. Co. v. Pearce, 82 Ark. 353, 101 S. W. 760, 118 Am. St. Rep. 75, 12 Ann. Cas. 127; Wigmore, Ev. section 463, and section 719; Central R. R. v. Skellie, 86 Ga. 693, 12 S. E. 1017; Hudson v. N. P., 92 Iowa, 231, 60 N. W. 608, 54 Am. St. Rep 550; Morris v. Columbian I. W. Co., 76 Md. 354; 25 Atl. 417, 17 L. R. A. 851; Whitney v. Thacher, 117 Mass. 523; Cleveland, etc., v. Perkins, 17 Mich. 296; Hoxsie v. Empire Lumber Co., 41 Minn. 548, 43 N. W. 476; Fountain v. Wabash R. R. Co., 114 Mo. App. 676, 90 S. W. 393; Texas, etc., v. Donovan, 86 Tex. 378, 25 S. W. 10.
We doubt if any of the .cases cited support the contention of respondent when applied to the facts of this particular case. If they do, we are not inclined to follow them as against the better reasoned cases cited in the opinion.
It follows, therefore, that the opinion heretofore rendered should be and is modified in accordance with the views herein expressed, and that the application for a rehearing should be denied.
CORFMAN, C. J., and FRICK, WEBER, and GIDEON, JJ., concur.