Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-09-09

Cal. 22S.
Marine Bank vs. Natioasl Bank.
81 N. Y. 7s.
Other decisions sustaining this rpIs1
are:
Jacksonville T. & K. r. CO. " Pea
ninsular Co., II L. r. A. Is. "a Fla,
Cloud VS.. Malvin. 1OS Iowa, Sc, As L..
r. A. sO9
McDermott VS.. Iowa Falls r. Co. IS
Iowa, $50
rarrel VS.. Pingree 5 Utah, $50.
Evansville vs. Senhenn. ISL Ind,
6341, l.. r. A. 734.
Pyne v. Treadweyy, Is Cal. PAT.
Dougherty VS.. Henarie. 40 CAL SIS.
Lake Erie r. R. Co. VS.. Griffin. ),
n. E. 722.
Lybarger VS.. State, Wash. $50.
Tolman Co. VS.. Bowennan, 6 S. ID.
2O6.
Robinson VS.. Allison. 81 Ala. 500
Florida Nat Bank vs. Ashmead, %
iFla 39I.
Weld VS.. johnson Mfg. Co. "a Wis.
537.
Moore VS.. Beaman, liz N. $50.
Hudson VS.. Jordon, ITO n $50.
Western News Co. VS.. Wilmarla,
"a Kan. 254
Chamberlain VS.. N E. r. R.. Al s. &.
Coulter VS.. Portland Trust Co., 20
Ore 469
Merchants National Bank VS.. Green
hood, 16 Mont. 1916
Cincinnati vs. Cameron 33 Ohio st.
1886.
; Hatto VS.. Brooks. 33 Miss. SIS.
= 81
kyerson VS.. Eldred, IS Mich. 400
Hayne New Trial and Appeal. $40.
Beck VS.. Thompson. p New. Al.
AS illustrative of this doctrine we
quote a few extracts from some Of
these opinions:
Manor VS.. Board 1877 Ind 1874:
Questions waived by silence of the
original brief can not be presented
to this court on petition for re-
hearing. fleetwood VS.. Brown, 100
Ind. 567 Union School Tn. vs. First
Nat. Bank, 102 Ind AGA, Thomas vs..
Mathis, 90 Ind 560''
Goodenow VS.. Litcnfield: I'VE feel
constrained TO hold that after a cause
has been submitted. determined anil
rehearing granted, it is too late to
raise for the first time such vital
, question as that now made in the
argument filed in aid Of the petition
for hehearing, the same not being
fled as matter Of rights but simply
as matter OF grace and favor If
the Court
KelIcg VS. Cochran: I'VE have de-
c:ded--and with manifest pro-
! priety-- that we will not grant
a rehearing in order to consider
/ POINTS not made in the argument
upon which the case was originally
submitted
Schsfer VS. Schafer: THE appel
iant, in order to avail himself CT a
question upon whicl % secure a juds-
ment. must present that question i'm
his brief upon the original submits
sIcn.''
/, The Supreme Court, of Florida in
Jack sonville T. & K. R. Co. VS.. Pcc-
TnsuTar CO. THE proper functin /:
fof a petition for rehearing is to pro-
sent to us any admission or cause for
which cur Judgment is supposed to be
terronecus. No. new ground or posi-
it.cn not taken IN the argument submit
ting the cause can be assumed"
Pvne VS.. Teradwell: THE second
Sround upou which 3 rehearing is
Red was not tai en- in the argument
Tor in anv of the briefs Of counsel IT
is too late to urge It now for the first
time after the ease hss been consid-
tered upon the points to which the
attention of the court was called, an,
decision has been rendered.
We understand that appellant bv
citing Eeck VS.. Thompson, comedies
This to be the practice and suggests
That it ought not to apply to a matter
that c,,uld rot have been ad~s,ced or
: waived at the time Of the first argu-
noent. We have ci-at more casas 10
show tho rpifcrritv of ire ru'e as
= string reason from not departing
FROM it.
If the Judgment of the district court
md our opriCn on appeal were cor
reef Al the time thew were made they
: oaunct be invalidated on rehearing bv
: his statute passed subsequently eve
, if for the purpose of the argument.
. its consrftutionaTity he conceded. 1t
; 10 r,e-ifaSt that the ~ehearing was NOT
2 granted for that purpose
: The instruction which we have men.
;, lt'opad as haiug under special objec-
l. Iticn is as fellows: ,...,
: No 10. The jury is instructed that
y +"e law distinguishes the necessary NJ
{, t''ra Of locomotive whistle from
" that of a stationary whist" inte~a
!. I'D fer, the purpose OF notice only
n That locomotive whistles are neces
!, isarv. amongst other purposes. for tn,
= purpose of Frightening animals OF
J, the track and to give notice If tbs
!. approach of trains to nersous about
- to cross the track at such a distance
= that the bell cannot be heard, OF
: the trains readily observed. ard tina
= in these and other cases their W
- upon railroads is both sanctioned IN.
y required by law. and that in src,
$ cases the usefulness Of the whist,
- depends upon the alarming an,
le frightening character OF the noise /
NJ makes. and one Of the purposes 70
4. which it is used is to brighten an
Re alarm.