Gatling v. Newell

T Hanna, J. Petition for a Rehearing. An opinion was pronounced in this case at the November term, 1857, in which several of the rulings of the Circuit Court, to which objections were urged, were affirmed, ■ and as to other rulings they were reversed. 9 Ind. R. 572. As to those rulings in which, by that opinion, it was decided that the Circuit Court had erred, the appellees filed a petition for a rehearing. A rehearing was granted; and now, upon the calling of the cause at this term, the appellees made a motion to submit the case upon the points [117] mentioned in the petition for a rehearing—being the same ruled against them in the above cited opinion. W. Z. Stuart and J. A. Liston, for the appellant. S. C. Willson, J. E. McDonald, S. Judah, and H O’Neal, for the appellees. Pending this motion, the appellant suggested a dimiriution of the record, in this, that the demurrer to the amended complaint does not appear in the record, and, therefore, moved the Court to order a certiorari to complete the record; and, also, that he have leave to amend his assignment of errors, based upon the decision of the Court below upon that demurrer. Questions of practice, under the statutes and rules of the Court, arose upon these motions, which were argued orally. Held, that the motion for a certiorari, under the circumstances, is not within a reasonable time, especially as no excuse is offered for a failure to make the application before the former submission. 2 R. S. p. 164, § 581. Held, also, that the question on the demurrer had already been decided, in this case, at a former term, when it was in this Court (7 Ind. R. 147); and that the demurrer was not, therefore, a necessary part of the present record, nor the ruling of the Circuit Court thereon a proper cause for the assignment of error. Held, further, that, under the' fourth rule of this Court (4 Ind. R. vii.), a rehearing granted upon a petition, asking for such rehearing as to certain points, or a portion, only, of those decided in a cause, limits a reexamination to the points decided and included in such petition.