On Application for Rebearing.
GIDEON, J.George Romney & Sons Company, respondent, and tbe State Treasurer, appellant, bave each petitioned for a rebearing.
Tbe respondent complains that tbe court was without authority or right to consider tbe assignment of errors relating to tbe insufficiency of tbe evidence to support the findings of tbe lower court. It is argued that tbe original assignment failed to comply with rule 26 of this court 54 Utah xv, (196 Pac. ix), in that such assignment did not specify or point out wherein tbe evidence is insufficient to support tbe findings.
Tbe case was argued and submitted on February 24, 1922. On tbe 15th of .that month tbe appellant applied to a member of this court, and was given authority to file a supplemental assignment of errors. That order has never been revoked. Tbe assignment of errors then filed, of necessity, is a part of tbe record on this appeal. It is not contended that tbe court is without authority to make such an order.
This court, in Baglin v. Earl-Eagle Min. Co., 54 Utah, 588, 184 Pac. 196, in discussing a question similar to tbe one now urged by counsel, says:
“Even admitting that in certain cases the appellant may he 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 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 called attention to the fact that there was no assignment of error as to that question, *188the 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.”
In tbe instant case tbe application was seasonably made, and it is not shown that respondent was in any way prejudiced. In tbe very nature of things prejudice to tbe respondent could not result, as it simply brought tbe matter before this court with such a record that tbe court could examine tbe whole case and determine it upon merits. This contention, therefore, cannot prevail.
We are satisfied with the conclusions reached on tbe merits of tbe case as tbe same affect respondent George Romney & Sons Company. In fact, a further consideration of the record convinces this court that tbe respondent received every consideration to which tbe facts entitled it both in tbe district court and in this court.
Tbe burden of tbe petition of tbe State Treasurer seems to be that tbe court, in determining that tbe estate of George Romney, deceased, was not liable for an inheritance tax upon tbe property of tbe estate of Jane Agnes Romney, deceased, has gone outside of tbe issues made by tbe pleadings. It is now insisted that it was not sought to subject the estate of George Romney, deceased, to an inheritance tax upon tbe property of tbe Jane Agnes Romney estate. If tbat.be true then William S. Romney, as administrator of tbe estate of Jane Agnes Romney, is not a proper party to this proceeding. It was not the intention of this court, nor do we think a fair reading and interpretation of tbe opinion warrants any such conclusion that tbe court did intend to determine that William S. Romney was not liable to pay an inheritance tax to the state upon tbe property of tbe Jane Agnes Romney estate. Tbe writer at least assumed that it was understood that William S. Romney, as administrator, bad paid or would pay tbe inheritance tax on tbe property of the estate being administered by him. If be decline to do so, necessarily tbe proper proceeding is to apply to tbe court in that estate, and *189not in tbe matter of the George Romney estate. The facts disclose that George Romney, as the sole heir of his deceased daughter, elected to carry into effect an oral trust of-the property to the beneficiary. The court was of the opinion and held that his estate was not liable for the inheritance tax. Nothing else was passed upon, nor intended to be passed upon, by the decision of the court in that regard.
The petitions for rehearing are denied.
CORFMjAN, C. J., and WEBER, THURMAN, and FRICK, JJ., concur.