ON MOTION FOR RECALL OF REMITTITUR (Filed December 24, 1942.) In this action after the motion for rehearing was denied and[5] the remittitur issued plaintiff filed a motion to recall the remittitur and to affirm the judgment of the district court.
The point relied upon is that we overlooked determination of a point of law raised on motion for rehearing. This is not a sufficient ground for recalling the remittitur. (Kimpton v.Jubilee Placer Mining Co., 16 Mont. 379, 42 P. 102.) The motion must be denied. But were we to consider the motion on its merits the result of our original opinion would not be changed.[6] The point now relied upon by plaintiff is that we overlooked passing upon the question of whether the cross-complaint states facts sufficient to constitute a cause of action in favor of defendant and against the plaintiff. Plaintiff contends that it is insufficient. The trial judge did not pass upon its sufficiency and we likewise did not.
We have given consideration to the point and are satisfied that the cross-complaint states facts sufficient to entitle defendant to at least some relief against plaintiff and that being so evidence thereunder should be received. *Page 400