Two points are urged in this motion for a rehearing.
It is first insisted that we were in error in concluding that the first brief filed in the case was not considered; and in support of that contention, we are furnished by counsel with the following extracts from the minutes of the Court upon the former appeal.
"January 16, 1886.
"Submitted in briefs for both parties and printed argument for appellees.
"March 16, 1886.
"Submission set aside and counsel for plaintiff allowed until next term to file brief under the rules.
"February 8, 1887.
"Submitted on briefs for both parties and printed argument for appellees. Motion 124 submitted with the case."
These extracts do not show that the case was disposed of upon that appeal upon the points made in the brief first filed. On the contrary, *Page 150 they evince that such was not the fact. As pointed out in the opinion in which we gave our reasons for dismissing the application, the first brief did not comply with rules and was objected to upon that ground in the brief for the appellees. The second brief does comply with the rules; and hence it is apparent from the minutes that the submission was set aside in order to permit a proper brief to be filed, and that such brief was filed as a substitute for the first. It is of no consequence that no formal order was entered striking out the first brief. It was most likely abandoned by counsel for appellants of their own volition.
The second point is that the question of the statute of limitations of four years was raised in the sixtieth assignment of error, which was presented in the amended brief. That assignment complains of the refusal of the court to give the following special charge:
"Fraud is never presumed, but must be proved, as any other fact in the case, though same may be proved by circumstantial evidence. Fraud does not make void a contract, but makes it voidable, and, if you find the said agreement is fraudulent, as between them, you will consider whether the impeachment of the same by plaintiff is within the! limitation of time prescribed by law. All actions to avoid a contract for fraud, when such instrument is in writing, must be brought in the State within four years after such cause of action accrues, and, if said agreement was recorded in the county where administration was more than four years prior to bringing the action, you will find for defendant."
The requested charge involves the question of the statute of limitation in connection with the question of fraud. It is based upon the legal proposition that the plaintiffs below could not attack the transaction for fraud after the lapse of four years, and concludes by telling the jury, if that period had elapsed before the bringing of the suit, to find for the defendant — meaning, of course, against all the plaintiffs. Even had this court upon the former appeal been of opinion that the legal proposition was correct, the assignment could not have been sustained. In the opinion of Judge Acker, which disposes of the question of the correctness of another special instruction asked by the defendant, it is said:
"We think the court did not err in refusing to give the special charge number three, because the charge as asked required the jury to return a verdict against all of the plaintiffs if they believed the contract was tainted with fraud, when, as we have seen, two of the plaintiffs were not in fact parties to the contract. There was nothing fraudulent in the contract; whatever fraud there was, was in the acts subsequent to the execution of the contract, and with these none of the appellees appear to have had any connection."
It is deducible from this statement that, in the opinion of the court, the requested charge was properly refused, because it was made applicable to all the plaintiffs when some of them were not participants in the alleged fraud. For these reasons, we adhere to our former conclusion *Page 151 that the question of the statute of limitation was not passed upon on the former appeal. We are strengthened in this conclusion by the fact the writer of the present opinion was a member of the court when the case upon the previous appeal was determined, and that, while he remembers that it was carefully and laboriously considered, and recalls many of the points involved, he has no recollection that the question of the statute of limitations of four years was one of them.
We appreciate the fact that this litigation has already been protracted to great length, and that it is desirable and important that it should be brought to an end. Besides, we have no disposition to shirk the labor and responsibility of determining the questions involved. But these considerations do not justify us in assuming a jurisdiction which has not been conferred upon the court by our Constitution and statutes.
The motion for rehearing is overruled.
Delivered June 26, 1897.