AMERICAN SURETY CO. OF NEW YORK v. JACKSON

AMERICAN SURETY CO. OF NEW YORK v. JACKSON. Circuit Court of Appeals, Ninth Circuit. May 7, 1928. No. 5324. I. Courts <@=£>406(1) — Questions not considered nor decided by court below not considered by Circuit Court of Appeals. Questions not considered nor decided by the court below will not be considered by the Circuit Court of Appeals. 2. Appeal and error <@=I2I2(I) — New trial by appellate court reopens every issue except questions finally determined by appellate court. The granting of a new trial by the appellate court reopens every issue in the case except as to questions definitely and finally determined by the appellate court. Appeal from the District Court of the United States for the Southern Division of the District of Idaho; Charles C. Cavanah, Judge. On petition for rehearing. Petition denied. For former opinion, see 24 F.(2d) 768. Richards & Haga, of Boise, Idaho, for appellant. Scatterday & Stone, of Caldwell, Idaho, and Frank T. Wyman, of Boise, Idaho, for appellee. Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. The appellee has petitioned for a rehearing upon two grounds: First, because the court did not consider or determine the effect of a preferred claim in the sum of $800 in favor of one Jeffries, arising out of a special deposit dissipated by the bank; and, second, because the court did not specify or define the issues to be retried. The first question was not considered or decided by the court below, and for that reason was not considered by this court, and the granting of a new trial reopens every issue in the case except as to questions definitely and finally determined by the appellate court. Petition denied.