right to withdraw his appeal, and an agreement so entered into will be enforced. Again, where on appeal to an inferior tribunal by a defendant the trial is to be had anew, the appellant occupies the same relative position of defendant, and has no greater right to have the appeal dismissed on his own motion than he had to have it discontinued below. The right of an appellant to dismiss his appeal is limited to the appeal. The appeal cannot be dismissed after judgment is pronounced. It would seem unquestionable that the parties have a right to stipulate for the dismissal of the appeal, without the aid or intervention of their counsel." 145. Change in Circumstances Pending Appeal.—When, pending the appeal, the circumstances change to such an extent that the appeal involves merely a moot question, it will, as a general rule, be dismissed. Thus if the term of imprisonment expires pending an appeal by the jailer from a decision in a habeas corpus proceeding releasing a prisoner from custody, the appeal will be dismissed." On the same principle an appeal from an order granting a writ of mandamus will be dismissed, or the order granting the writ affirmed irrespective of the merits of the appeal, where it appears that the act which the writ commands to be performed, has been performed, and of course the same is true where an event occurs pending an appeal from an order refusing the writ which renders it impossible for the court to grant the relief sought. For example where, pending an appeal from an order denying an alternative writ of mandamus in a proceeding commenced against the clerk of the court to compel the issuance of an execution on a judgment alleged to have been rendered therein, it affirmatively appears from the petition filed in the proceeding that the time within which an execution could have been issued on the judgment has expired and that the judgment is dormant, the appeal will be dismissed. Again where, pending an appeal from the denial of the relief sought by the plaintiff, the defendant fully performs all things sought to be enforced in the action, the questions involved in the appeal become moot questions merely, and the appeal will be dismissed. This rule has frequently been applied to appeals from the denial of writs of mandamus.10 A mere offer to correct the error complained of does not, however, affect 4. 2 Ann. Cas. 795 note. 5. Fort v. Fort, 118 Tenn. 103, 101 S. W. 433, 11 Ann. Cas. 964. 6. Humptulips Driving Co. v. Cross, 65 Wash. 636, 118 Pac. 827, 37 L.R.A. (N.S.) 226. 7. Harris v. Lang, 27 App. Cas. (D. C.) 84, 7 Ann. Cas. 141, 7 L.R.A. (N.S.) 124; Tabor v. Hipp, 136 Ga. 123, 70 S. E. 886, Ann. Cas. 1912C 246 and note. 8. Tabor v. Hipp, 136 Ga. 123, 70 S. E. 886, Ann. Cas. 1912C 246 and note. 5 Ann. Cas. 626 note. 9. Norwood v. Clem, 143 Ala. 556, 39 So. 214, 5 Ann. Cas. 625. 10. 5 Ann. Cas. 626 note. the right of the appellant to a reversal,11 and to warrant a dismissal of the appeal there must be a full performance. 12 It has also been held that where the appellant, pending his appeal, performs the judgment or decree from which he appealed, where it was for other than the payment of money, the appeal will be dismissed, as no appeal lies as a general rule from such a judgment, where it has been performed.18 It is not every change in circumstances which might be said to render the case a moot one which will require a dismissal of the appeal. Whenever the judgment, if left unreversed, will preclude the party against whom it is rendered, as to a fact vital to his rights, though the judgment if affirmed may not be directly enforceable by reason of lapse of time or change of circumstances, it cannot be said that merely a moot question is involved. Thus a writ of error to review a judgment ejecting a tenant holding over under an alleged implied renewal of the original lease will not be dismissed after the tenant has vacated, as involving only a moot case, even though the action involved only the right to possession, as the legality of the judgment for possession is still vital, since, if it is not overthrown, the tenant would be precluded by it, in an action to recover for the use and occupancy, from showing that he was rightfully in possession under the renewal, in which case he might be required to pay more than the stipulated rental.14 And where, pending an action by the assignee of a lease to restrain the lessor from enforcing an alleged forfeiture for breach of a covenant against assignment and subletting, the parties make a stipulation by which they evidently intend to preserve to each the right to prosecute the action to a final determination, an appeal by the lessor from an adverse judgment will not be dismissed on the ground that, after appealing, he gave notice of termination of the tenancy under certain provisions of the lease, thus recognizing it as a subsisting contract and leaving nothing to be adjudicated in the action.15 Also where, pending an appeal from a judgment of ouster in quo warranto proceedings against a public officer, the appellant was removed from the office for insubordination in taking the appeal, the appeal should 11. Leake v. Hayes, 13 Wash. 213, State v. Seattle Lighting Co., 60 Wash. 43 Pac. 48, 52 A. S. R. 34. 12. State v. Philips, 97 Mo. 331, 10 S. W. 855, 3 L.R.A. 476. Thus the installation by a gas company of a single meter in an apartment house, and the connection of the building with its mains, after the dismissal of a petition for mandamus to compel it to install a meter in each apartment, is not a termination of the controversy, which will destroy the jurisdiction of the appellate court. 81, 110 Pac. 799, 30 L.R.A. (N.S.) 492. 13. Wedekind v. Bell, 26 Nev. 395, 60 Pac. 612, 99 A. S. R. 704. And see supra, par. 47, as to when an appeal will lie from a judgment or decree which has been satisfied or performed by the appellant. 14. Kaufman v. Mastin, 66 W. Va. 99, 66 S. E. 92, 25 L.R.A. (N.S.) 855. 15. Katz v. Miller, 148 Wis. 63, 133 N. W. 1091, Ann. Cas. 1913A 1199. not be dismissed on the ground that after such renioval it involves merely a moot question.16 Nor will an appeal be dismissed, in a suit for the specific performance of a contract for the sale of personal property, on the ground that the property has been taken beyond the jurisdiction of the court by the appellee and disposed of, and therefore a decree respecting it cannot be effective.17 On a conviction for treason or felony and attainder at common law, which worked a forfeiture of all estate, both real and personal, in case of the death of the person convicted his representatives were permitted to prosecute a writ of error to reverse the attainder; in the United States, however, attainders have been abolished, and therefore, as the right of the representatives grew out of their interest in the forfeited estate, they cannot prosecute such a writ, and where the convicted person dies pending a writ of error or appeal, even after the submission of the case, the proceeding abates and will be dismissed, and a judgment of reversal will not be entered nunc pro tunc as of the time of the submission.18 The effect of the escape of a prisoner, pending his appeal from the conviction, has been heretofore discussed. 19 146. Failure to Assign Errors.-The appellate court has power to enforce the requirement that errors be assigned, even though the requirement is waived by the parties. This power is a discretionary one, and while in most cases the appellate court has no hesitancy in dismissing the appeal ex mero motu, yet there may be cases where it will not do so. An objection that no assignment of errors has been made and filed on appeal, not raised until after argument in the appellate court, and then raised without notice to the opposing counsel, comes too late, and must be deemed to have been waived, so far as the appellee is concerned, and where the record contains but a single question and no assignment of errors was therefore necessary to enable the court to determine the very point in issue, a dismissal will not be ordered by the court in the exercise of its power in the matter.20 When a person wishes to insist on his right to have an appeal dismissed for a failure to assign errors, he should file a motion for that purpose in which he should show the failure of which he complains and make a demand for dismissal. The matter will then be called to the attention of the court in a formal manner, before it 16. State v. Pinkerman, 63 Conn. 176, 28 Atl. 110, 22 L.R.Á. 653. 17. Livesley v. Johnston, 45 Ore. 30, 76 Pac. 13, 946, 106 A. S. R. 647, 65 L.R.A. 783. 18. O'Sullivan v. People, 144 Ill. 604, 32 N. E. 192, 20 L.R.A. 143 and note. In Whitley v. Murphy, 5 Ore. 328, 20 Am. Rep. 741, on an indictment for felony, the prisoner was convicted and sentenced to be imprisoned and to pay the costs of the prosecution. He appealed, and pending appeal died. It was held that the appeal was abated; that the judgment for costs remained in force; and that execution might issue thereon against his estate. 19. See supra, par. 46. 20. Smith v. Hill, 83 Ia. 684, 49 N. W. 1043, 32 A. S. R. 329. has given to the case that consideration which is necessary to its determination on the merits.1 XI. HEARING AND REHEARING; BRIEFS AND ARGUMENTS Hearing and Rehearing 147. Hearing in General. The parties, as a matter of right, are usually entitled to a personal hearing for the argument of the case when proper request is made therefor, but the exercise of this privilege is subject to reasonable regulations by the appellate court, and, like any other privilege, may be waived. Thus under a rule of the reviewing court by which a party who interposes a timely written request before the court for an oral argument on the final hearing is entitled thereto, if he does not interpose such request until after the cause is finally determined he will be held to have waived his right thereto. While argument of the case in the first instance on appeal is a matter of right, rearguments are directed for the satisfaction of the court alone, and are altogether subject to its discretionary control and direction. Where the statute requires that the case be noticed for argument at least ten days before the first day of the term, in computing the time the day of service of the notice is to be excluded and the first day of the term included.5 148. Rehearing in General.- A petition for a rehearing is a request to the court to revise its own action by correcting errors and modifying or setting aside its own judgment. One to whom the decision is not adverse cannot petition for a rehearing; and it has been held that the attorney-general is only amicus curiæ, when invited to appear in an action involving an important constitutional question which is brought in the name of the state on the relation of a person who seeks thereby to enforce a private right, and has no standing to petition for a rehearing. A waiver by one party of his right to apply for a rehearing cannot, of course, affect the right of the other party to do so. The appellate court may adopt reasonable rules regulating the right to a rehearing; such as a rule that the petition be approved by one member of the court, or that a brief be filed in support of the petition. The record on which the original hearing was had will be considered the true record on the rehearing, though there may have been some irregularity in incorporating matters therein. Thus an order will be treated as a part of the record and as legitimately before the court for examination on the rehearing of an appeal, if the case was submitted by both parties at the first hearing, on the theory that the order was properly in the record.10 The filing of a motion for leave to present a petition for a rehearing or even the granting of such leave does not vacate or annul the judgment,11 and the denial of the rehearing will leave the judgment in full force. as of the time of its rendition. Accordingly when the appellant dies pending the petition for a rehearing, and the petition is denied, there is no occasion for reviving the suit in the name of the representatives of the appellant.12 149. Grounds for Rehearing.-A rehearing should not be granted unless there is a reasonable showing that the judgment rendered was erroneous.18 But, when a new trial is ordered, a rehearing may be granted even when the result must be the same as that announced in the original opinion. This is true when (1) the concurrence of one of two judges constituting the court delivering the judgment on appeal is limited to the result, and thereby the law of the case is not made; and (2) the original opinion fails to consider a point raised on the appeal, which, if tenable, might be fatal to the cause of action set forth in the complaint; and (3) the former opinion announces certain rules of law which, in the judgment of the court as constituted when the motion for rehearing is considered, require modification to prevent misapplication of the same on a new trial of the cause.1 14 The fact that the decision will have an important bearing on a large class of other cases and that on account of pressure of business the opinion on the original hearing was not as full as desirable, is a material consideration in determining whether a rehearing will be granted.15 In civil cases it is a well recognized rule, that questions not advanced on the original hearing will not be considered on the petition for a rehearing.16 This must necessarily be so, because if 13. Jacksonville, T. & K. W. R. Co. v. Peninsular Land Transp. & Mfg. Co., 27 Fla. 1, 157, 9 So. 661, 689, 17 L.R.A. 33. 14. Fenstermaker v. Tribune Pub. Co., 12 Utah 439, 43 Pac. 112, 13 Utah 532, 45 Pac. 1097, 35 L.R.A. 611. 15. Morrow v. Weed, 4 Ia. 77, 66 Am. Dec. 122. 16. Kellogg v. Cochran, 87 Cal. 192, 25 Pac. 677, 12 L.R.A. 104; Lamar |