superseded by statute as recognized in In re Estate of Barnhill, 62 S.W.3d 139, 142-43 (Tenn.2001)
How later courts described this case
- superseded by statute as recognized in In re Estate of Barnhill, 62 S.W.3d 139, 142-43 (Tenn.2001)
Written by the judges who cited it.
The opinion
*324 On Petition eor Rehearing.
This cause was decided at a former day of this term, and a petition to rehear has been filed.
An examination of the petition to rehear discloses the fact that, in so far as the questions before the court for decision are concerned, no new authorities are presented. A large number of cases are cited on various questions more or less pertinent to will contests, but none of the cases involves the question now before the court. Every one of the new cases has been examined, and none of them militates against the opinion rendered by this court at a former date.
The broad statement in the petition that the will is the res, is unsupported by any case cited by the petitioner, or found in the books, and is contrary to the decisions of this State, as cited in the opinion delivered at a former day of this term.
The only point in the petition to rehear that suggests a new question, is this: In the petition to rehear, it is insisted that when the court of civil appeals sustained assignments of error Nos. 12 and 25, made by the plaintiff in error, the judgments sustaining these assignments necessarily involved and adjudged several other assignments submitted to the court of appeals, as, for example, assignment No. 2, which was an assignment of error in regard to a portion of the charge of the trial judge.
Under the well-settled practice in this court, the court of appeals only having passed on two assignments of error, and having sustained them, and having preter-mitted all other assignments of error, this court has no jurisdiction to pass upon the soundness or unsoundness of the pretermitted assignments. Had counsel for plain *325 tiff in error in the court of appeals regarded these assignments as important, then there was a clear way open to them under the established rules of practice laid down in a number of cases. They should have called these pre-termitted assignments to the attention of the court of appeals, and, after that court had acted upon them, they could have filed their own petition for certiorari, bringing this case into this court in order to review the action of the court of appeals in that respect. Having failed to follow this course, it is too late now for the question to be raised as to the correctness or incorrectness of the trial judge’s attitude in these particulars.
For these reasons, the petition to rehear is dismissed.