
    [Civil No. 1015.
    Filed November 15, 1907.]
    [92 Pac. 928.]
    EPES RANDOLPH, Plaintiff and Appellant, v. LYCURGUS LINDSAY, Defendant and Appellee.
    1. Appeal and Error — Motion for Rehearing — Action Settled — Motion Withdrawn — Court cannot Alter Judgment. — Where the parties to an action, after a motion for rehearing has been filed, settled the case and the motion is -withdrawn, the court cannot alter the judgment formerly announced.
    APPEAL from a judgment of the District Court of the First Judicial District, in and for the County of Pima. John H. Campbell, Judge.
    Reversed.
    Eugene S. Ives, for Appellant.
    Frank H. Hereford, and J. W. Swanwick, for Appellee.
   PER CURIAM.

— At an earlier session of this court during this term, the court (Mr. Justice Nave dissenting) directed that judgment be entered herein reversing the judgment of the district court and remandirfg the cause for a new trial. The appellee duly filed a motion for a rehearing, and an exhaustive brief in support thereof. Thereafter the case was settled by the parties out of court, and a stipulation filed withdrawing the motion of the appellee for a rehearing.

The brief of the appellee upon the motion for rehearing presents some new features, and we do not feel that we should give expression by an opinion in the ease upon the questions of practice raised by the issue without a further consideration of the matter in the light of the brief filed. Such consideration we may not give, however, since, the motion for a rehearing having been withdrawn, the appellant is without opportunity to file a brief in his own behalf in reply. Furthermore, we have not now; the motion having been withdrawn, the opportunity to alter our judgment, should we deem it proper to change or modify our former determination of the questions involved.

Judgment reversed. 
      
      No written opinion.
     