In re Aguirre's Estate
| Decision Date | 05 March 1937 |
| Docket Number | 3162 |
| Citation | 65 P.2d 685,57 Nev. 275 |
| Parties | In re AGUIRRE'S ESTATE. AGUIRRE v. AGUIRRE. |
| Court | Nevada Supreme Court |
Appeal from District Court, Clark County; Wm. E. Orr, Judge.
On rehearing.
Rehearing denied.
For former opinion, see 62 P.2d 1107.
A. A. Hinman, of Las Vegas, for appellant.
Ham & Taylor, of Las Vegas, for respondent.
The petition for rehearing presents only a reargument of appellant's case. We do not see anything in it that causes us to doubt the correctness of our opinion. Rehearings are not allowed merely for reargument. There must be shown a reasonable probability that the court reached an "erroneous conclusion, or overlooked some important question which was necessary to be discussed in order to arrive at a full and proper understanding of the case." State ex rel. Copeland v. Woodbury, 17 Nev. 337, 30 P. 1006, 1011.
The burden of appellant's argument now, as before, is that respondent's testimony is not competent to sustain the finding that Cleto Aguirre (respondent's father) was divorced from respondent's mother, and was at the time of his death a single man. The testimony of the son is that his father was not married when he died. As the mother was living at the time, this testimony indirectly proves that they had been divorced. True, it is not the best evidence of a divorce, but counsel did not object to it on that or any ground. Being then willing to have the fact proved in that way, he is concluded now from having the evidence declared incompetent. Vietti v. Nesbitt, 22 Nev. 390-397, 41 P. 151. As stated in Sherwood v. Sissa, 5 Nev. 349, 355: "If evidence secondary or hearsay in its character be admitted without objection, no advantage can be taken of that fact afterwards, and the jury may, indeed should, accept it as if it were admissible under the strictest rules of evidence."
A court should treat such evidence in the same way. Dalton v. Dalton, 14 Nev. 419, 427; Watt v. Nevada Cent. R. Co., 23 Nev. 154, 163, 44 P. 423, 46 P. 52, 726, 62 Am.St.Rep. 772.
The testimony also adequately supports the finding that the deceased was not married when he died.
A rehearing is denied.
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