The opinion
ON MOTION POR REHEARING.
STEPHENS, Associate Justice.
The motion for a rehearing seeks a review of the question upon which the judgment below was reversed and the cause remanded, and in addition urges a reconsideration in order that, in case the position of appellee can not be sustained, he may have an opportunity to remit and dismiss as to the appellant to whose prejudice the error was committed in the trial below, and have the judgment affirmed as to the other appellant.
This being an action of tort, we are of opinion that, if appellee had suggested such a course before the judgment of this court was entered, the judgment below might have been affirmed as to the Martin Brown Company, upon his entering a dismissal as to Sanger Bros., but under the practice adopted by the Supreme Court, which we feel bound to follow, such an offer comes too late in a motion for a rehearing. See Chadwick v. Meredith, 40 Texas, 383 ; Giddings & Giddings v. Baker, 80 Texas, 312 ; Kauffman v. Wooters, 79 Texas, 210 ; Blum v. Strong, 71 Texas, 321 ; 73 Texas, 566 . -
We do not wish to be understood as announcing that no error was committed to the prejudice of the Martin Brown Company, for we expressly pretermitted in the opinion heretofore rendered one or more questions the decision of which was not deemed necessary to a disposition of the appeal. We announce simply, that if appellee, on the orignal hearing in this court, had offered to remit and dismiss as to Sanger Bros., the judgment might have been affirmed as to the Martin Brown Company, if no error had been found to their prejudice in the record.
The complaint in the motion for a rehearing, that the brief for Sanger Bros, does not contain the assignment of error upon which our judgment of reversal rested, not being sustained by the record, was abandoned by appellee in the oral argument of this motion.
The motion for a rehearing will therefore be overruled.
Motion overruled.