On Motion for Rehearing.
PER CURIAM.Plaintiff in error asks a rehearing and a reversal of the judgment upon the sole ground that the trial court did not deny a motion for new trial sua sponte, and without notice to counsel for either side, as stated in brief of defendant in error and recited in our opinion, but that the motion was not disposed of until more than 60 days after it was filed, nor until long after the rule period for making reply had expired.
We think, however, that our order of affirmance should stand, subject to hearing and decision of motion for new trial. We think wé should presume that failure to reply was not intended as an admission of the truth of the fraud and contempt of court charged, but rather that it was due to a belief, as now claimed by counsel, that the charge was “preposterous and unthinkable on its face,” which proposition, we think, should not be accepted as matter of law. If the asserted charge of misconduct of defendant’s representative is found, to be true, a new trial should be granted; if found untrue, upon actual hearing on the merits, in view of what is said in our previous opinion, we should not feel warranted in imperatively ordering a new trial.
Petition for rehearing denied.