
    EMMA WAAL v. CHINGIRO SAKAGI AND Y. YOSHIKAWA.
    No. 1470.
    Petition for Rehearing.
    
      Smith & Wild for the petition.
    Filed December 8, 1923.
    Decided December 10, 1923.
    Peter's, C. J., Perry and Lindsay, JJ.
   Per Guriam.

The only recognized ground for a rehearing alleged in the petition is that the decision rendered herein by this court was based upon a ground not argued by counsel. and upon which counsel for the complainant understood that he would be permitted to file a brief. The point in question is stated in the petition to be “whether the court of equity had jurisdiction in this cause after answer filed, which answer denied the title of complainant-appellee to the right of way.” While stating in the opinion that it could not be said without qualification that in this case the objection of want of jurisdiction was not at. any time raised in the court below, we held that in any event we could not overlook the absence of jurisdiction on the part of the lower court to determine the issue of title raised by the bill and the answer. This question of jurisdiction, it is true, had not been referred to in the briefs filed; .hut this court of its own motion called the attention of counsel of both parties to the possible lack of jurisdiction and the matter was discussed by counsel to some extent on two occasions. It was the only question raised by the court at these later hearings, after the filing of briefs. .

The petition is denied without argument under rule 5.  