McGregor v. Lehman ( 1931 )

ON PETITION FOR A REHEARING.

On a former day of the present term an opinion was filed and a decree entered affirming the decree of the chancery court in favor of H. Á. Lehman, the complainant below, and against O. M. Mc-Gregor, the defendant below. A petition has been filed on behalf of defendant McGregor, appellant here, asking us to set aside our former decree, rehear the ease, and decree in favor of appellant McGregor.

Petitioner further insists that, in any event, the costs of the appeal should be adjudged against appellee Lehman.

Concerning the questions raised by appellant’s assignment of error, the petition brings forward no view of the case, either of fact or law, which was not considered by the court prior to our former decree, and we do not find in the petition any sufficient reason to change or modify the views expressed in our former opinion.

"With respect to the adjudication of the costs of the appeal, petitioner prays that the costs of the appeal, or, at any rate, the major part of same, be adjudged against appellee Lehman, for the reason that appellant, as he had a right to do under the applicable statute, designated certain specified parts of the record to be sent up in the transcript, viz: (1) the original bill, (2) the answer, (3) depositions of the complainant and the defendant, and (4) the final decree; that the remainder of the record (which composes the larger part of same in volume) was designated by the appellee, Lehman.

Petitioner insists that, as the sole question raised by appellant in his assignment of error was that of champerty, and this court decided that question on defendant’s disclaimer in his answer, the portions of the record designated by Lehman contained “unnecessary cumulative evidence.”

The foregoing argument of appellant does not take into account the fact that appellee and his solicitor could not, at the time the transcript was made up below, foresee or anticipate the assignments of error which would be filed in this court. The appeal vacated the decree of the Chancellor, and the case was open for review in this court upon all questions to which the appellant might direct his assignments of error. In the absence of the proof with respect to the location of the disputed boundary line, the complainant-appellee would have been helpless in this court in the face of an assignment that the Chancellor’s decree was erroneous in that respect. We think appellee is entitled to a decree for all the costs of the appeal against appellant McGregor and the sureties on his appeal bond. The petition for a rehearing is denied and dismissed at the cost of the petitioner.

Crownover and DeWitt, JJ., concur.