Marionneaux v. Smith , 164 So. 456 ( 1935 )

LE BLANC, Judge.

We have carefully considered the application for rehearing presented herein and, on the issues as made up by the pleadings, remain convinced that our opinion and the decree accompanying it are correct.

If, as counsel now further contend, the plaintiff’s right under the contract was reso-lutory and not reversionary, that is an issue which should have been pleaded either by way of exception or in defense to the action. Counsel are gracious enough to excuse the court for having" overlooked this point and not applying the law, as, they state, they themselves did not discuss it in their original brief. But, as indicated herein, that issue is not raised in the pleadings at all and it is a well-settled rule that an appellate court will not consider and decide a point that is presented for the first time in an application for rehearing.

The rehearing applied for is therefore refused.