
    [Civil No. 1124.
    Filed March 25, 1911.]
    [114 Pac. 557.]
    W. S. TEVIS and W. H. McKITTRICK, Defendants and Appellants, v. JEPP RYAN, T. C. RYAN and E. B. RYAN, Plaintiffs and Appellees.
    i. Appeal and Error — Disposition op Cause — Affirmance upon Condition op Remittitur. — Id a proper ease, a judgment may be affirmed on condition of remittitur, and otherwise reversed for new trial.
    On motion for rehearing.
    Motion overruled.
    For former opinion, see ante, p. 120, 108 Pac. 461.
   PER CURIAM.

This rehearing was had primarily for the purpose of enabling counsel to present their views as to the propriety of the action of this court in affirming the judgment of the trial court on condition that the appellees elect to file a remittitur, otherwise ordering a reversal and a new trial; the question not having been presented by counsel prior to the rendition of such judgment. After a consideration of the argument had and briefs filed, we adhere to the views expressed in our former opinion, reported ante, p. 120, 108 Pac. 461.

It is therefore ordered that, should the appellees elect to file a remittitur in this court within twenty days hereafter in the amount of $64,564.63, judgment shall be entered in this court in favor of the appellees and against the appellants and the sureties upon the bond on appeal, and against the Pacific Surety Company, surety upon the bond given in the court below, in the sum of $67,435.39, with costs in the trial court, and that the costs of this appeal be awarded to the appellants; otherwise, that the judgment be reversed and the cause remanded for a new trial.

The CHIEF JUSTICE and DOAN, J., not sitting.  