
    No. 28,096.
    William Frowe, Appellee, v. L. E. McPheeters, J. D. McNeill et al., Appellants.
    
    (272 Pac. 931.)
    Opinion on motion to set aside judgment as to Charles Hilleary filed January 2, 1929.
    (For original opinion see 126 Kan. 596, 270 Pac. 580.)
    
      Paul R. Nagle, of St. John, for Charles .Hilleary.
    
      J. B. Wilson and E. H. Beck, both of Lawrence, for the appellee.
   The opinion of the court was delivered by

Hopkins, J.:

After the decision in this case (Frowe v. McPheeters, 126 Kan. 596, 270 Pac. 580), Charles Hilleary filed'a motion for rehearing, or to set aside the judgment as to him, claiming that he had never been served with notice of a cross appeal by the plaintiff and was not a party to the litigation in this court. Although the plaintiff had presented the case on the theory that Hilleary was a litigant here, he has now filed an answer to Hilleary’s motion, admitting that no notice of a cross appeal was served upon Hilleary and consenting that the decision as to Hilleary may be set aside. So far as the order of reversal affects Hilleary, the same is therefore set aside.  