J. K. Armsby Co. v. Raymond Bros.-Clarke Co.

134 N.W. 920, 90 Neb. 773, 1912 Neb. LEXIS 155

Opinion

Per Curiam.

Complaint is made in a motion and brief for rehearing that in reversing a law action this court is without jurisdiction. to direct the district court to render judgment in favor of either party. It is further stated that defendant desires to amend its answer in the court below. The first point must be decided adversely to defendant’s contention under the authority of section 594 of the code, which provides: “When a judgment or final order shall be reversed either in whole or in part, in the supreme court, the court reversing the same shall proceed to render such judgment as the court below should have rendered, or remand the cause to the court below for such judgment.” This provision of the code has been followed in Story v. Robertson, 5 Neb. (Unof.) 404; Chicago, B. & Q. R. Co. v. Yost, 61 Neb. 530; Robertson v. Brooks, 65 Neb. 799; American-Surety Co. v. Musselman, ante, p. 58.

The statement that defendant desires to amend its answer in the court below should not be considered now. No reason is assigned why the amendment was not made prior to tlie first trial. The request' comes too late after protracted litigation. Gadsden v. Thrush, 72 Neb. 1.

Tbe motion for rebearing is

OVEEEULED