Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-07-21

ON PETITION FOR REHEARING
Opinion by Norcross, ]. !
Counsel for appellant have filed a |
lengthy petition for rehearing in this |
cause (see opinion 81 Pac. AID setting |
forth three grounds why, in the opin-
ion of counsel, reahearing should |
be granted. to wit:
a. The Court has admitted the |
premises and reached wrong con-
clusion.
o. The Court has overlooked the
strongest point urged by appellant
80. The Court denied that GER /
tain evidence was introduced to inn |
peach the witness, in the face Of the
fact that the lower Court stated it
was introduced for that purpose and
admitted for that purpose and acted
upon by the jury
The labor evidently expended by
counsel in the preparation OF the
petition, the manifest sincerity of be-
lief in the correctness of the position
taken, and the zeal with which it is
presented, warrant a statement of the
reasons why this Court deems that the
petition should be denied.
1. The. first point urged is in refer
ence to the evidence concerning the
receipt for five hundred dollars. No
points are raised in the petition, how
ever, that were not very carefully
considered before arriving at de-
cision with reference to this receipt
Much deliberation was given to this
nd f11rf celebration
of the point does not shake our belief
in the corrections of the conclusion
heretofore reached.
2. 1t was urged in the briefs of
counsel for appellant and in the oral
argument of the case and again in the
petition that the trial court erred in
admitting certain evidence upon cross
examination of the defendant, which IS
claimed to be in relation to facts not
within the pleadings. and from which
the jury could draw. the conclusion
that the appellant owed the respond
end large amount of money besides
that sued for in the action, and, hence,
that the admission of such testimony
was prejudicial to the appellant in that
the jury might be satisfied that the
five hundred dollars covered by the
receipt had in fact been paid to re-
SpOndent and yet allow the respond
ent the full amount sued for because
Of6he showing of this other indebted
Hess 1t is now contended that this
"the strongest point urged by appel
liant" was overlooked by the Court
in it's opinion. The point was not
overlooked by the Court but was not
touched upon in the opinion for the
reason that, in the judgment of the
Court, there was no assignment of
error that warranted it's consideration.
In the opinion heretofore rendered by
this Court. every assignment of error
contained in the statement on appeal
was passed upon. This Court has re,
peatedly held that it will consider or
ly such alleged errors as are embraced
in the assignments of errors.
The evidence complained of is the
same as that cOntended to have been
enormously admitted for the purpose
of impeaching the witness and the
only objection made to it that has
been brought before this Court for
consideration under the assignments
of error was in reference to this al
lodged attempt to impeach the wit
ness. Even if the admission of the
testimony complained of was errone-
Gus, we hardly see how the jury could
have been mislead by it under proper
instructions from the Court. The in
structiOns given are not made a part
of the transcript on appeal, but it
contains a statement that. he jury
were duly instructed by the Court
g. During the cross-examination OF
the defendant objections being made
by defendants attorney to the line of
interroation the Court, in ruling upon
the objection stated:
ut is for the purpose of impeach-
ing the witness. if I understand Judge
Mack that they must have had settle
ment. If I remember he testified in
his examination in chief that they
never had a settlement"
Counsel for plaintiff at mo time
claimed such to be the purpose of the
cross-examination although from the
. questions asked the witness thus far,
he Court might have drawn the con-
cIuAipn that such was the purpose
of the examination of the witness.
When, however, counsel moved to
strike out the evidence elected upon the
grounds which are set out in full in
the opinion heretofore rendered, the
Court in denying the motion put it
upon .the ground that the testimony
of the witness complained of, sis touch
ing his qualifications as book-keep
err" From this and other statements
of the trial Judge made at the time il
would appear that the trial Court from
further examination Of the witness
considered that it's purpose was moi
that of impeachment, or at least that
1t had not such tendency.
For the reasons given. rehearine
is denied.
/ concur.
Talbot.