
    No. 22,914.
    Celestia A. Bailey and W. B. Bailey, Appellants, v. W. S. Henrion et al., Appellees.
    
    Appeal from Sedgwick district court, division No. 1; Richard E. Bird, judge.
    Opinion modifying former opinion filed April 16, 1921.
    (For original opinion of affirmance see ante, p. 282, 194 Pac. 928.)
    
      W. B. Bailey, of Wichita, for the appellants.
    
      Robert C. Foulston, James A. Conly, George Siefkin, all of Wichita, for the appellees.
   The opinion of the court was delivered by

Dawson, J.:

The appellees present a motion to modify our opinion by striking out that portion of the syllabus and opinion which discusses the insufficiency of the newspaper in which the paving resolution was published. They say that the discussion indirectly calls in question the validity of many legal matters not relevant to the present case; that the so-called newspaper had been named by the district court of Sedgwick county as the official court paper for legal publications, under sections 6001 and 6002 of the General Statutes of 1915; and likewise designated as the official city paper for Wichita, under section 1412 of the General Statutes of 1915; but that these facts were not presented to the district court, nor in this court, because the plaintiffs had offered- no evidence attacking the validity of the paper, and that plaintiffs had merely alleged its invalidity in their verified motion for a new trial, but offered no evidence to that effect. At the rehearing, plaintiff, W. B. Bailey, pro se admitted that such was the fact; that he had merely stood on the verified motion. The trial court’s ruling was—

“The evidence shows that the resolution was published in the Daily Record, which this court finds to be a newspaper, and finds it for the reason that there is no evidence here to the contrary, and that the resolution was printed as it is purported to be printed.”

Since this issue was not threshed out in the district court, it follows that the motion to modify our opinion, as reported in 108 Kan. 282, 284, 194 Pac. 928, should be allowed.

It is so ordered.  