Opinion
April 22, 1947.
Present — Hagarty, Acting P.J., Carswell, Johnston, Adel and Nolan, JJ.
Present — Hagarty, Acting P.J., Carswell, Johnston, Nolan and Sneed, JJ. [See ante, p. 31.]
Motion referred to the court that rendered the decision.
Motion for reargument granted and on reargument the opinion herein is amended by striking the last three lines from the final paragraph, so that, as amended, it shall read "The judgment should be reversed on the law and the facts and a new trial granted, with costs to abide the event." It was assumed, and there was no intimation on the trial or the appeal to the contrary, that plaintiff had adduced all the evidence available to him to sustain his contention that the ordinance involved was unconstitutional. He now seems to profess that he may be able to adduce further relevant evidence on this issue. As there is to be a new trial, he should be permitted to attempt to do so. The new trial, therefore, will afford an opportunity to litigate anew every issue presented by the pleadings.