Lugar v. Burns , 197 Ind. 646 ( 1926 )

ON PETITION FOR REHEARING. Appellant has filed a verified petition asking the court to grant a rehearing and dismiss this appeal, as involving only a moot question, because of certain facts recited in the 8. petition which are not shown by the record. This appeal was taken by appellant in September, 1923, and at any and all times up to February 24, 1926, when the cause was decided, he might have had his appeal dismissed by filing a motion to that effect. But it was not until April 6, 1926, that he asked for its dismissal, and not until then had he undertaken to show to the Supreme Court any of the facts because of which he now insists it ought to have been dismissed. Those facts, as stated in his verified petition, are that on August 24, 1925, six months before this court affirmed the judgment, appellant resigned as trustee of Bolivar township, Benton county, Indiana, and two days later, appellee was appointed and filed his bond as township trustee, which recited that appellant had resigned and he had been duly appointed by the county auditor as such township trustee to serve until his successor shall have been duly elected and qualified, and that thereupon appellee took possession of said office and ever since has continued to fill it. If appellant believed that these facts terminated the controversy and subjected his appeal to dismissal, he might have asked for its dismissal at any time in the six months which elapsed between the time when he resigned and the time when the Supreme Court announced its decision. But the rule is firmly established that the Supreme Court will not grant a rehearing to decide a question that was not presented by the record on which that decision was based, nor in any way suggested to the court until after the decision was made. Rule 22, Supreme Court; Meek v. State, exrel. (1909), 172 Ind. 654, 663, 88 N.E. 299, 89 N.E. 307;Baltimore, etc., R. Co. v. Sliger (1923), 194 Ind. 442, 450, 141 N.E. 467, 143 N.E. 282. No question was before the Supreme Court as to the effect which the resignation by appellant and the appointment and qualification of appellee as trustee may have had on the rights of the parties as previously determined by the judgment which was affirmed, and our decision does not declare the effect which anything that occurred after the appeal was taken may have had upon those rights. The action of the Supreme Court was confined to determining that the trial court did not err in its decision made and judgment rendered in June, 1923. We cannot now recall that decision to pass upon questions arising out of acts done in 1925, as to which nothing was shown by the record or in any manner whatever presented to this court for consideration at the time it decided the appeal.

The petition for a rehearing is overruled.