Merchants' Nat. Bank v. Greenhood

• Decision Date: 30 September 1895
• Citation: 41 P. 851,16 Mont. 395
• Parties: MERCHANTS' NAT. BANK v. GREENHOOD et al.
• Court: Montana Supreme Court

41 P. 851

16 Mont. 395

MERCHANTS' NAT. BANK v. GREENHOOD et al.

Supreme Court of Montana

September 30, 1895

On motion for rehearing. Denied.

PER CURIAM.

In this case a motion for rehearing has been filed and submitted. The appellants ask for a rehearing, in order that they may argue an objection to the judgment as entered in the lower court. The objection which they suggest to the judgment is only as to a portion of the same. This objection is now made for the first time. The record in this case was on file in this court for 17 months before the appeal was heard. The counsel filed briefs covering nearly 400 printed pages. On the argument we extended the time, and gave counsel more than twice as much time for argument than the rule prescribes. With all this time which counsel had to prepare the case, and with the extraordinarily voluminous briefs that were filed, and with the unusual time given to the arguments counsel never suggested that there was the slightest error in the entry of the judgment below. We are not prepared to say that we would never grant a rehearing upon a point that was presented for the first time on the motion for such rehearing, but, under the extraordinary circumstances of this case, we do not feel that we are called upon to entertain the motion. The point presented now is wholly new, and we do not know that it is of great importance. There has been the amplest and the fairest opportunity for counsel to present everything upon which they relied. The remittitur even was sent to the lower court, under rule 15 (36 P. ix.), and was recalled to await the determination of this motion. As to such matters this court said, in Mining Co. v Holter, 1 Mont. 429: "A rehearing will not be granted in an equity cause after it has been remitted to the court below to carry into effect the decree of the court above according to its mandate." Again, the court said in Davis v. Clark, 2 Mont. 394: "This case is before us upon motion of appellant for a rehearing. In considering the questions which have been submitted, we must be governed by the rule established in Mining Co. v Holter, 1 Mont. 432. The decisions of this court will not be reversed unless they are in conflict with a statute or controlling decision, to which the attention of the court has not been directed, or it appears that some question which is decisive of the case has been submitted by counsel, and been overruled by the court." In the case of Beck v Thompson (Nev.) 41 P. 1, the court said: "All the points raised in the petition, except as to the rent, are new matters, and, under the decisions of a long line of authorities, they should not be considered on petition for rehearing. 'A rehearing in the supreme court will not be granted in order to consider points not made in the argument upon which the case was originally submitted.' Kellogg v. Cochran, 87 Cal. 192, 25 P. 677. 'The supreme court will not consider a petition for rehearing that attempts to discuss the case upon grounds which were not presented in the original argument or discussed in its opinion.' San Francisco v. Pacific Bank, 89 Cal 23, 26 P. 615. 'New questions cannot be raised for the first time on motion for rehearing.' 2 Enc. P1. & Prac. 386, and authorities cited in note 1. 'Counsel are presumed to have presented on their original argument all the grounds upon which they rely for the affirmance or reversal of the judgment appealed from.' Id., and note 2. We fully concur with the abovenamed authorities. A rehearing is denied." In the note to 2 Enc. Pl. & Prac., cited by the Nevada court, the author cites the following cases: Robinson v. Allison (Ala.) 12 South 604; Bank v. Ashmead, 23 Fla. 391, 2 So. 657, 665; Jacksonville, etc., Ry. Co. v. Peninsular Land, etc., Co., 27 Fla. 1, 157, 9 So. 661; Funk v. Rentchler, 134 Ind. 68, 33 N.E. 364, 898; Martin v. Martin, 74 Ind. 207; Lawrence Co. v. Hall, 70 Ind. 477; Yates v. Mullen, 24 Ind. 277; Greater v. Williams, 55 Ind. 461; Rikhoff v. Machine Co., 68 Ind. 388; Heavenridge v. Mondy, 34 Ind. 28; Brooks v. Harris, 42 Iowa, 630; McDermott v. Railway Co., 85 Iowa. 180, 52 N.W. 181; Dietlin v. Egan Com. Pl. 2 Misc. Rep. 52, 21 N.Y.S. 6; Moore v. Beaman, 112 N.C. 558, 17 S.E. 676: Hudson v. Jordan, 110 N.C. 250, 14 S.E. 741; Weld v. Manufacturing Co., 84 Wis 537, 54 N.W. 335; State v. Coulter, 40 Kan. 673, 20 P. 525; Weathersbee v. Farrar, 98 N.C. 255, 3 S.E. 482; Lovenberg v. Bank Tex. Sup. 5 S. W. 816; Schrichte v. Stite's Estate, 127 Ind. 472, 26 N.E. 77; Lawrence Co. v. Hall, 70 Ind. 469; Bitting v. Ten Eyck, 82 Ind. 421: Coleman v. Keels, 31 S.C. 601, 9 S.E. 735; Underwood v. Sample, 70 Ind. 450; Porter v. Choen, 60 Ind. 388; Railroad Co. v. Huff, 19 Ind. 315; Kellogg v. Cochran, 87 Cal. 192, 25 P....