The opinion
Wood, J., (on rehearing). The appellee contends on rehearing. that this court can not review the evidence in the case as it has done because the bill of exceptions does not disclose the filing or overruling of a motion for a new trial. Citing Beidler v. Friedell, 44 Ark. 411 , where we said: “The bill of exceptions fails to show directly or indirectly that any motion for a new trial was made, or any exceptions saved as to overruling the same. It is wholly silent as to any motion for a new trial at all. No error, therefore, as to the proceedings on the trial, nor as to the proof, can be noticed, if any there were.” And also citing, Johnson v. State, 43 Ark. 391 .
(6) But these cases were expressly overruled in Carpenter v. Dressler, 76 Ark. 400 -405. In that case we said: “The court is of the opinion that an exception to the overruling of a motion for a new trial can properly be made in the record entry of its overruling, and that it is not necessary, when that is done, to repeat the same formality in the bill of exceptions.”
The record entry on the overruling of the motion for a new trial recites: “This matter coming on to be heard upon the motion for a new trial filed herein, and the court being sufficiently advised in the premises, doth overrule said motion, and to the overruling of said motion all of the defendants and each of them at the time excepted, and asked that their exceptions be noted of record, which was accordingly done.”
(7) Appellee further contends that the assessments were not arbitrarily made, as held in the opinion, and it presents in its brief an abstract showing the manner of the assessment of benefits which it contends proves that the assessments were not unreasonable and arbitrary.
Under rule 3 of this court, in no case will a petition for rehearing “be granted when based on any fact thought to be overlooked by the court unless reference has been clearly made to the same in the abstract of the transcript,” prescribed by rule 9. Appellee filed no abstract under rule 9 on the original hearing of the cause, and we can not, on rehearing, consider the abstract now presented in the brief of appellee’s counsel on such motion.
The motion for a rehearing is therefore overruled.