143 N.W. 369 | S.D. | 1913
This case is before us upon petition for rehearing. The former opinion is reported in Lounsberry v. Kelly, 32 S. D. 160, 142 N. W. 180. We are of the opinion the conclusion reached in that decision must be adhered to; but, in justice to appellant’s counsel, deem it our duty to correct certain statements contained in the former opinion.
Upon the appeal, appellant’s counsel sought to have reviewed certain instructions given by the court which were excepted to and the refusal of the trial court to give certain instructions requested by appellant’s counsel at the trial. In that opinion this court said: “The failure to insert the instructions complained of and those refused in the statement'of facts in appellant’s brief would be sufficient alone, in any case, to warrant this court in disregarding errors in instructions.”
Appellant’s original brief was filed on January 12, 19x3, and did not in fact contain the instructions complained of, but thereafter, on March 15, 19x3, on application to the presiding judge, an order was entered without objections, from respondent’s counsel, permitting appellant to file an additional brief containing the instructions complained of-and omitted from the original brief.'
The former opinion is reaffirmed, and the petition for a rehearing denied.