6 S.D. 572 | S.D. | 1895
This case was decided at the present term, the opinion being published in 6 S. D. 100, 60 N. W. 405. Upon the ground that the printed abstract upon which the case was heard and decided by this court is incomplete, and unfair to him, respondent asks leave to present an amended abstract and for a rehearing of the case. It is not claimed that appellant’s abstract, duly served on respondent’s attorney, was deliberately' or willfully unfair; but it is urged that from it was omitted much material testimony, upon which the case was decided in the trial court. Ordinarily, this would furnish no ground for even sustaining an application for rehearing after the decision of a case, for the abstract is required to be served on the adverse party, who then has full opportunity to examine and if incorrect or incomplete, to correct by an amended abstract. Acquiescence in the proposed abstract is, under such circumstances, nearly equivalent to a stipulation that it is correct. On this account we held in Ayers, Weatherwax & Reid Co. v. Sundback (S. D.) 58 N. W. 929, and in Bank v. McKinney (S. D.) 60 N. W. 162, that, unless the case were very exceptional, an application, after argument and decision, to present
' Nor do we think our decision of. this application should be influenced by either of the other facts alleged and urged, to wit, that no proper bill of exceptions was ever settled in the case, and that appellant filed a reply brief, without serving the same on respondent’s attorney. The abstract was made in all respects as .though a bill or statement had been- settled. It impliedly asserted that one had been settled, and that the abstract
On argument in this court, appellant is entitled to reply to respondent’s argument. It is not claimed that the reply in this case contained new or affirmative matter, not proper and legitimate in a reply. When such is the case, we see no objection to an appellant making his reply in print, to be filed at the proper time for replying. So long as it is but an answer to respondent’s argument, he simply exercises the right of reply which is accorded him by the established practice of the court. The petition for re-hearing is denied.