¶1'.The following opinion was filed June 21, 1900:
¶2The argument for appellants on their motion
¶3“for a rehearing calls our attention to certain inaccuracies of statement in the opinion filed, in_ asserting that defendants first clearly objected to adjudication of amount due in this, a legal action, after confirmation of the referee’s report. The “first clear objection” referred to was the motion to amend the answer so as to set up the existence of the partnership as a defense, and it is true that this motion was presented, not after, but at the same time with, the motion’to confirm, and was heard and decided with it. This inaccuracy is, however, wholly immaterial to the conclusion reached, that defendants had, by conduct, assented to in*170vestigation and adjudication of the amount due the plaintiff. That conclusion resulted from the voluntary introduction of the evidence as to the accounts after the fact of partnership was fully admitted by plaintiff, continuance of the trial to completion, and the submission to the referee of the rights of the parties for decision upon the pleadings, and proofs as they then stood, without objection to the form of action.
¶4Indeed, it is questionable whether such assent might not. be inferable from mere procedure with the trial, and even if, at the close of the trial, due attempt to raise the partnership character of the transactions as an objection to the consideration, in action at law, of the rights of the parties,, had been. made. But that question need not be discussed or answered, for the record discloses no attempt to raise-such objection, but, on the contrary, the submission of the merits by both parties to the referee. True, appellants assert that at the close of the evidence they moved, before the referee, for a dismissal on the ground that the claims of plaintiff arose out of unsettled partnership accounts; but no-such motion appears of record, nor does the bill of-exceptions certify that any was made. We cannot accept any other evidence of such fact, even if material,— not even the affidavit of appellants’ counsel.
¶5Other contentions now urged by appellants were fully considered in the original decision of the case, and present-no reason for rehearing.
¶6By the Court.— Appellants’ motion for rehearing is denied, with $25 costs.