*286(May 31, 1907.)
ON PETITION FOR REHEARING.
PER CURIAM.The appellant has filed a petition for a rehearing in this case and complains of the former decision of the court, and contends that it was the duty of the respondent to show that a judgment had been made and entered instead of appellant’s duty to show the contrary. Under ordinary circumstances that position would be correct, but in the case at bar the appellant made his motion in the lower court, based upon the theory of a formal and final judgment having been entered, and recognized the same in his motion, and has done so throughout the proceeding so far as the record is concerned. The same is true with reference to the action and orders of the trial court. In this condition of the record, and in view of the further fact that error is never presumed, and that it is the duty of the appellant to point out error, we would not be authorized to consider the order from which this appeal has been taken as the final judgment in the case. We cannot view or consider this order as anything other than an order made after final judgment. The petition does not present any new point or phase of the case that would either require or justify a rehearing. A rehearing is therefore denied.