Peck v. Robinson & Smith

On motion for rehearing. Denied.

For former opinion, see 194 S.W. 456. Appellant, by motion filed herein, asks that our judgment reversing and remanding this cause for a new trial be amended, by adding thereto an order affirming the judgment in his favor upon the claim against him set up in appellees' answer.

As shown in our original opinion, appellees by cross-bill sought to recover damages from appellant for alleged false representations made to them by him in regard to the property which he transferred to them. The trial court instructed the jury to return a verdict in favor of appellees upon the claim asserted against them by appellant, and in favor of appellant upon appellees' claim against him, and upon the return of such verdict judgment was rendered accordingly. Appellees did not except to this Judgment, and have not appealed therefrom, nor presented any cross-assignment of error complaining of any portion of the judgment, Upon this state of the record, the portion of the Judgment against appellees on their cross-bill is not before us for review. The two judgments, though written together as one, are separate and distinct, and in no way dependent upon each other, and the judgment against appellees is not disturbed by our order reversing the Judgment in their favor. Our reversal of the Judgment and remanding the cause for a new trial only applies to the judgment against appellant on the cause of action asserted by him; the portion of the judgment against appellees on their crossbill, as before stated, not having been brought before us for review by this appeal