ON PETITION FOR REHEARING In his petition for rehearing appellant says this court is in error in stating in its opinion that appellant did not question the sufficiency of certain answers of appellee to state 8. facts constituting a cause of defense to appellant's complaint by demurrer. This criticism is sustained by the record, for it does show that the appellant filed a demurrer to the third and fourth paragraphs of answers, a brief summary of which answers is set forth in our original opinion, and that said demurrers were overruled.
But the appellant is not harmed by this statement, for he did not assign the action of the trial court in overruling these demurrers as errors for reversal, neither did he assign any of the court's conclusions of law as errors for reversal, so if the trial court did err in its ruling on these demurrers, such errors have been waived by appellant. Certainly if this action of the trial court had been relied upon for reversal this oversight would not have occurred.
Appellant complains because this court held that the Mangos appeared to the action and waived necessity of service of summons or notice upon them. This complaint is wholly unfounded. On April 10, 1935, the clerk of the Grant Superior Court filed his return to a writ of certiorari issued out of this court commanding him to prepare and certify to this court certain parts of the record omitted from the transcript in the first instance. *Page 359 The record as supplemented shows that notice by publication was duly given to the Mangos in all the adversary proceedings involved in this litigation in which they were made parties defendant. In fact the record shows, that upon an affidavit of non-residence made by the attorney of record for the appellant in this case, a notice by publication was duly given to the Mangos of the pendency of this action in the lower court. So in fact there was no foundation whatever for appellant's second and third assignments of error in which he seeks to challenge the jurisdiction of the trial court, for the facts asserted therein are in direct conflict with the facts disclosed by the record.
Appellant's petition for rehearing is denied.