On Motion for Rehearing.
On motion for rehearing plaintiffs in error ask us to file additional conclusions of fact as to their limitation title based on excerpts from the testimony of certain witnesses, Graves and others.
In their brief this question was raised by the sixth, seventh, eight, and ninth assignments of error. There is only one statement *1037under any of these assignments, and it is placed under the sixth assignment of error and referred to under the other assignments. That statement as to possession was literally as follows: “Settegast purchased 617% acres from Long and others, by deed recorded in June, 1900,-which tract included the 240 acres in this suit. St. 203. Settegast went into immediate possession (St. 156), and paid all taxes on the 617% acres each year as the taxes accrued (St. 154). The possession of Settegast continued uninterruptedly until he sold to Marks in September, 1907 (St. 155), he haying a tenant residing and in charge of the 617%-aere tract all the time. Stock was pastured on this land within. the fence which inclosed the entire tract (St. 15S), and Settegast operated a sawmill there and manufactured lumber from timber cut from all parts of the land (St. 161). There was a clear period from June, 1900, to September, 1907, when Settegast had actual possession of this land, with its use, under a duly recorded deed (St. 204), coupled -with the payment by him of all taxes. Appellants requested a peremptory instruction (Tr. 61), which was refused; and the refusal was assigned as error.”
It will be noted that the testimony presented in the brief is referred to therein as being on pages 154, 155, 150, 161, 203, and ■204. The statement of testimony now presented, upon which we are asked to find •conclusions of fact, is contained on pages 154, 156, 161 (that far it has hereinbefore been presented and fully passed upon), and reference is now made to additional testimony contained on pages 66, 67, 76, 77, 103, 136, 137, 99, 100, 102, 110, 111, 113, 117, 119, 128.
[6] It is apparent, therefore, that the statement presented in the brief, which was the ■only reference to the defendants’ testimony supporting their limitation title, was defective in that it was not a statement made up from all that was in the record. It is also •defective, we think, in that it does not set out the testimony of the witnesses, but sets out counsel’s conclusions from said testimony.
[7] In a record as large as the one in this case, with issues as complicated as we find in this case, the appellate court must of necessity rely upon counsel for, at least, a reference to the place in the record where all the testimony may be found upon which they rely to support the propositions which they submit. The effect of the defective statement was to present a proposition of law supported by certain facts out of all the. facts in a very large record. Having based our opinion on said facts so presented, and on such additional facts as we were able to find on the subject, we are now presented with facts never before mentioned as being relied on in support of the propositions advanced, and asked to file additional conclusions of fact based on them. We believe we are well within the rules of law in declining to do this, the rule being that this court may, at its option, rely entirely upon the statement under any assignment for the facts on which it is based.
As it is now apparent that said statement was not made up of all that was in the record, we decline to consider the assignment and hold said assignment insufficient by reason of said defective statement to entitle it to consideration. In this connection, we also hold that the statement under the first assignment of error is insufficient to entitle it to consideration in that, referring to possession, it reads: “There was no evidence of possession at all except during the 70’s by Poskey and Burton who lived on 50-acre tracts that had been given to the wife of each (St. 46-81)” — -because the same is only a conclusion and does not set out the facts.
In their motion for rehearing plaintiffs in error also request many additional findings of fact to the effect that certain witnesses testified to certain facts. These we refuse, because, as we understand it, it is for us to find “conclusions” of fact, not the elemental facts making up the conclusions, and we have in the opinion concluded all material fact issues which were properly presented.
This case is a perfect illustration of the necessity of the enforcement of the rules regarding specific assignments of error, correct propositions and statements of fact made up of all that is in the record. If counsel neglect these rules and get results unsatisfactory to them, they should not therefore intimate in their motion for rehearing that the court has knowingly decided the case on something else than what they honestly believed the law to be.
The motion is accordingly overruled.