Opinion
File No. 9746.
Opinion filed December 22, 1959
Appeal from Circuit Court, Pennington County; Hon. Thomas Parker, Judge.
On petition for rehearing, the petition is denied.
Gunderson, Farrar Carrell, Rapid City, Melville C. Williams, Pope Ballard, Chicago, Ill., for Plaintiff-Appellant.
Bangs, McCullen Butler, Thomas H. Foye, Rapid City, for Defendant-Respondent.
Appellant's petition for rehearing is mainly based on the assumption that there was a mutual mistake of law and calls to our attention Fransen v. State, 59 S.D. 432, 240 N.W. 503, not previously cited by counsel. The Fransen case is founded on different facts and clearly distinguishable from the present action for there the mistake of plaintiff was confessed or admitted by the demurrer; here the trial court's finding was to the contrary, that there was no mistake. As the opinion states this finding cannot be disturbed because the evidence does not preponderate against it.
The rehearing is denied.