2 S.D. 331 | S.D. | 1891
This cause was argued and decided at a former term of this court, and the opinion is reported in 1 S. D. 279. A petition for a rehearing was presented, in which the learned counsel for plaintiff called our attention to the fact that this court overlooked in its opinion an important point made and discussed by counsel on the argument of the case, and on the showing made in the petition we granted a rehearing. A re-examination of plaintiff’s abstract and brief discloses the fact that neither in the assignment of errors ■ nor in counsel’s printed brief is the point now suggested made, but it was discussed in the oral argument, and was in this manner brought to the attention of the court. The point made and discussed in the oral argument, and now presented by plaintiff’s brief, is stated by counsel as follows: “The defendant’s bill of exceptions upon which the motion for a new trial was granted fails affirmatively to show that the ruling, for the error in which a new trial was granted, was excepted to by the defendant," or was excepted to at the time the ruling was made, or was even excepted to at the trial.” The part of the bill of exceptions pertaining to this question, as shown by appellant’s abstract, is as follows: ‘ ‘Defendant then offered in evidence an order signed by the Hon. L. K. Church, judge of said court, on the 10th day of December, 1886, sustaining and refusing to vacate the attachment aforesaid in the case of said Sawyer etal. v. James Hall. * * * To the admission of this order in evidence the plaintiff objected, on the ground that the same was