Lucus v. Ruckman

On Motions for Rehearing

Two separate motions for rehearing have been filed herein. The appellee (plaintiff below) says we erred in several particulars and invokes Rule 60(b) of District Court Rules in her behalf. We have considered the motion and find nothing to change our views expressed in the opinion on file.

The appellant (defendant below) has moved for rehearing. He urges we failed to pass on the grounds set up in his cross-complaint in which he seeks certain relief from appellee in the nature of an accounting. Since we have held the trial court could not reopen the issue of heirship, the only portion of the complaint which it had jurisdiction to try, and have directed a dismissal of the cause of action asserted by appellee-plaintiff in that behalf, we do not feel the case should be held open for trial of an accounting suit where other factors touching jurisdiction on that score may enter and have to be considered.

Accordingly, the motion of appellant-defendant for rehearing should be denied. The denial, however, should be without prejudice to any right he may have to litigate the question of an accounting from appellee-plaintiff, in whatever forum he determines is the appropriate one for the maintenance of any such' suit.

It thus results that both motions are to be denied;

It is so Ordered.

SADLER and McGHEE, JJ.,' concur.