First National Bank v. Stroup

The opinion of the court was delivered by Burch, J.: In a petition for a rehearing the statement contained in the opinion, to the effect that if the plaintiff procured the note sued on by fraud the fraud would constitute a defense to the action, is criticised. The statement was a virtual approval of the third instruction to the jury and was correct. Other grounds of the petition for a rehearing are without merit and the petition is denied. In a motion for modification of the judgment of this court, the plaintiff advises the court that in due time it filed in the district court a motion for a new trial, which has not been acted on because the plaintiff’s motion for judgment on the special findings was sustained. Under these circumstances the judgment of this court remanding the cause for judgment in favor of the defendant will be modified to read that the cause is remanded for further proceedings.