¶1On Petition for Rehearing
¶2In this case the respondent has filed a petition for rehearing. In it he takes issue with our decision that Exhibits five and six were improperly admitted in evidence and that their admission constituted prejudicial error. He states that the record shows that these exhibits were received in evidence pursuant to stipulation of counsel.
¶3The record of the trial shows a colloquy between counsel for the parties concerning the reception in evidence of the record in the criminal case upon which plaintiff’s cause of action for malicious prosecution was based. Two subjects were under discussion, first, whether counsel for defendant would waive identification of the record by the clerk of court; and second, whether the whole record should be offered in evidence or counsel for plaintiff should be permitted to offer selected documents extracted by him from the record. During the discussion the following statements were made:
¶4By Mr. Conny (Counsel for defendant) r “If the court please, it seems to me that it would simplify matters, save a lot of time both now and later, if portions of the Clerk’s-file from Oliver County are to be put in’this record, I believe that the entire file should be put in the record, and on behalf of the defendant we are willing to stipulate that the entire file be put into the record as an exhibit and as evidence in so far as it may be material. We do not believe it proper for counsel to just pick out that portion of the record that he wants and ask us to put that in. We are willing to put the whole thing before the Court and the Jury.
¶5Mr. Murray (Attorney for plaintiff): “I. am not asking for permission to put anything in. All I asked you was to waive the presence of the Clerk of Court.
Mr. Conmy: “I have made my offer.
Mr. Murray: “It was propaganda.
*567Mr. Conmy: “Why pick out á little here and there ?
Mr. Murray: Are you making a speech now ? I am not Mortimer Snerd.
Mr. Conmy: “Try your lawsuit.”
¶6This record clearly shows an offer hy the defendant’s counsel to stipulate into the record in this case the record in the prior case subject to the right of counsel to ■object to the materiality of any part of that record. It shows a rejection of that ■offer by the attorney for the plaintiff. Thereafter the attorney for plaintiff offered separately certain documents selected by him from the record. These included Exhibits five and six. When they were offered, defendant’s counsel objected to their reception in evidence. In the circumstances, it is clear that the prior limited and rejected offer to stipulate the whole record in evidence was not a waiver of defendant’s right to object to selected documents which were offered piecemeal thereafter.
¶7Since the other points raised in the petition are fully considered in the opinion heretofore filed, we deem it unnecessary to discuss them further here. The petition for rehearing is denied.
¶8GRIMSON, C. J., and JOHNSON, SATHRE and MORRIS, JJ., concur.