The opinion
ON PETITION FOB BEHEABING
The complainant has filed a petition to rehear which contains a detailed analysis of the opinion of this Court filed on October 27, 1967, together with brief of authori *269 ties and argument. Defendants have replied with authorities and argument.
The petition concedes the prerogative of this Court to base its decision npon grounds not argued by counsel. The authorities and argument submitted in the petition and answer thereto have been given full study and consideration, so that this further determination of the matter does follow opportunity of counsel to be heard on the points involved.
One of the grounds of the petition is that the case should be decided upon the pleadings alone. The pleadings were analyzed and discussed in our former opinion which requires no supplement in this regard. The petition does point out that the Supreme Court remanded the cause to this court for a finding-of fact, which does not indicate that the pleadings were sufficient basis for a decision in that court.
Complainant insists that the inadvertent wording of the captions of the discovery depositions is a triviality which should be disregarded by this Court. For most purposes, this insistence is sound, but where the inadvertence is such as to mislead adversary into offering no evidence for the defendant, then the inadvertence, if such it be, is not trivial. The supposed inadvertence could have been readily corrected where pointed out by exceptions filed, and defendants could have been given opportunity to contravene evidence with evidence, but this was not done. Complainant went to trial with no competent evidence, and defendants were justified in going to trial with no evidence.
The petition urges that this matter be remanded for a new trial. This possibility was considered and rejected in preparing the original opinion.
*270 As stated in Lyon v. Crabtree, 16 Tenn.App. 42 , 64 S.W.2d 24 (1932) in respect to a similar request:
“In view of tbe multitude of cases in which our Supreme Court has affirmed judgments of trial courts because the evidence was not properly preserved by bill of exceptions, and in not one of which (so far as we can learn) has there been a remand under the authority of the Code section above quoted, we are constrained to hold without discussion, that said Code section has no application to such a case.” 16 Tenn. App. at 46 , 64 S.W.2d at 26 .
And, in Reeve v. Harris (Tenn.App. 1897) 50 S.W. 658 , it is said:
“There must be an end of litigation, after the parties have had a full and fair opportunity to have their rights adjudicated. To allow repeated trial, on the theory that the losing litigant might be more successful next time, would be unwise from the standpoint of public policy, and unjust to the opposing litigant.” 50 S.W. at 661.
As suggested in our former opinion, there are better times and ways to attempt to reform election procedure than to implead a committee of citizens who propose to hold a primary election, to deposit “under protest” a contribution to the expenses of the election, to urge that the committee proceed with the election with its necessary expenses, and then to demand refund of the contribution which must necessarily have been expended in part at least by conducting the election as urged by complainant.
The petition to rehear is respectfully denied.
Shriver, P. J., and Puryear, J., concur.