Grim v. Manning

TERRY, C. J. — The petition for a rehearing in this case contains only a reiteration of the points argued in the appellant’s brief which was filed on the 27th of October. At that time there was in the record no finding of facts by the judge below. The counsel in his brief seems to have treated the written opinion of the district judge as his finding, and his argument conclusively established the point that the opinion of the judge was not a sufficient finding of facts under the former rulings of this court.

The counsel seems to have overlooked a rather important fact mentioned in the opinion of this court, to wit, that by [66]consent of parties an amended or supplemental record had been filed which does not contain such finding.

We presume the counsel who presented the petition for a rehearing was ignorant of the fa.ct that such supplemental record had been filed, as we think a perusal of the finding of facts contained in it would satisfy the counsel, as it did the court, that his assignment of errors was not supported by the record.

Rehearing denied.

I concur: Burnett, J.