Coopman v. Citizens State Bank

WILBUR, Circuit Judge.

In the petition for rehearing the appellant cites without application certain decisions relating to the acts of de facto notaries and states that these cases were not presented in the original brief. Notwithstanding the fact that they were not cited in the brief, they were examined by the author of the opinion at the time the opinion was written. In addition thereto, other cases bearing upon the same question were considered.

In view of the fact that appellants’ petition to the lower court was based upon the assumption that the original declination of homestead was void and the question of whether or not the acts of de facto notaries public were valid was not presented to the trial court, and not raised in the briefs before us, the question is one which could not be properly considered by us. We do not understand that the appellants in the petition for rehearing make any definite claim based on the assumption that the original declaration of homestead was valid, perhaps because if valid that fact would require the affirmance of the order of the trial court.

We file this memorandum in denying petition for rehearing in order to make it clear that the question of whether or not the original declaration of homestead was valid was neither presented to nor considered by us upon appeal.