Porter v. Allen ( 1902 )

Per CURIAM.

— In a petition for rehearing the respondents complain that this court did not pass on their assignment of error as to the action of the district court in striking the answer and cross-complaint of respondents from the files, and cite, in support of the proposition that this court may pass upon such errors, the decision in Gordon v. Lemp, 7 Idaho, 677, 65 Pac. 444. Perhaps the said decision is somewhat misleading, yet it only speaks of the right to make assignments of cross-errors. The rule is too well settled, that appellate courts will not review errors against the successful party unless he appeals or cross-appeals from the judgment, to need comment. In this ease the respondents should have taken a cross-appeal, which they could have done upon the record in the original appeal, if they desired the action of the trial court in striking their answer and cross-complaint from the files reviewed in this court. However, inasmuch as the court erroneously struck the complaint from the files, and also struck from the files defendants’ answer and cross-complaint, it will be proper for the trial court to permit the defendants to answer and make any defense that they may have, and set up any counterclaim that they may have, growing out of the transactions set forth in the complaint or connected therewith, in order to make up the issues in the case. The rehearing prayed for is denied.