Hicks v. Armstrong

On Motions for Rehearing.

All the parties hereto have filed their respective motions for rehearing herein. Plaintiffs in error insist that the judgment of this court affirming the judgment of the court below in favor of John S. Hicks for 10 acres of land and $55 rent, is erroneous, in that it does not accord him the amount of land or rent to which he is entitled, claiming that judgment should have been in his favor for 1818/i6 acres of land and $108.93, including rent and interest, and asking that we reform and render the judgment in his favor for said amounts; basing this contention upon the theory that he and his coplaintiffs were entitled to a one-half interest in and to 129 acres of the land in controversy, and their proportionate share of rent thereon for a period of two years prior to the filing of suit. While plaintiffs in error, including John S. Hicks, did raise this question in their motion for a new trial as filed in the court below, and also incorporated the same in their assignments of error filed in the trial court, still, this assignment is not copied in their brief, nor is there any assignment in their brief specifically raising the question now presented.

Defendant in error Armstrong on this phase of the case contended that the judgment in favor of John S. Hicks as rendered was erroneous, for the reason that he was not entitled to any land nor any rent under the verdict rendered, and insisting that the judgment should be reversed and remanded.

John S. Hicks in his reply brief urges that said judgment for 10 acres of land and $55 rent, assailed by defendant in error, was correct, and that it should not be set aside for the reasons assigned by the latter.

[7] We are not prepared to concede the correctness of plaintiffs in error’s contention that John S. Hicks was entitled to one-third of one-half of the land and rents thereon, as claimed by them in the first instance, because this would be against the finding of the jury on this phase of the case; but, even if he was entitled to more than was in fact awarded him, still, not having presented the question in his brief, showing specifically the reasons upon which his contention was based, irrespective of whether he is estopped by reason of his apparent'inconsistent contention set forth in his reply brief, he must be regarded as having waived his right to complain of such supposed error, and cannot for the first time present the question in this court by motion for rehearing.

Motions overruled.