¶1On Petition eor a Rehearing.
¶2We do not think that the opinion in this case is susceptible of the interpretation given it by appellee, to the effect that the court holds that an answer to an assignment of errors might not be filed in the Supreme Court, setting up facts occurring after the judgment and appeal, and supporting such answer by written and even oral evidence.
¶3While this court could consider and decide issues of fact so tendered, and while it has done so in rare instan*624ces, yet, as the opinion says, “such, certainly, has not been the practice.”
¶4The spirit of the statute, and the very nature of this court, as a court of errors and appeals, tend to confine attention to questions of law, and to require that questions of fact be tried in the courts of original jurisdiction. Such being the prevailing and proper practice, it would be manifestly inequitable to hold that appellee was too late in filing his answer of prior adjudication in the trial court after the return of the case from the former appeal. Granting that this court might have entertained that plea had it been here presented, as appellee claims it should have been, yet it was not too late when filed on the taking up of the case for retrial. The purpose of the opinion was not to decide anything further than this on that question.
¶5Appellee also contends that we did not decide the claim made by him that the answer, while professing to answer the whole complaint, answered only a part of it, and hence that his demurrer to the answer was properly sustained. Appellee admits that a plea of former adjudication, when well made, is a bar to the further maintenance of the action. How, then, can it be said that it was not error to sustain the demurrer to this answer?
¶6. We have given careful attention to the able and earnest petition and brief of counsel for a rehearing of this case, but can find in it no reason for changing the conclusion formerly reached by us.
¶7The petition for a rehearing is overruled.