Hawkins v. McCrary

On Rehearing

SIMPSON, Justice.

We have restudied the transcript in the light of appellant’s contention on rehearing and are still of the opinion that the point was not made, nor the issue raised, as to the identification or description of the truck on which the judgment was entered. The lower court stated to the jury m his oral charge: “The real issue between the parties in this Case is the ownership of the property”. Nowhere in the oral charge is any mention made of the identity, vel non, of the truck in controversy, nor do we believe such point was made in any of the proceedings below. It is clear the appellant did not raise such an issue in his pleading, but appellant now asks us to enter a determination on the basis of its exhibit that the truck described in the complaint and judgment entry is not the truck in controversy. To accede to this insistence would in effect cast the burden on this Court of passing on questions of fact not presented in the trial below. This, of course, we may not do.

We can not concede merit in the application.

Opinion extended and application for rehearing overruled.

LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur.