APPLICATION FOR REHEARING
No. 2979. Decided Aug. 4, 1939.
BY THE COURT:The above-entitled cause is now being determined on appellee’s application for rehearing.
The application is set out in 11 separately numbered specifications.
No memoranda accompanies the application.
Specifications Nos. 1 to 7, inclusive, assert claimed errors of the court in its finding's and statements in 7 separately named instances very similar to the form generally used in applications for new trial. Other than the general statement that the court erred nothing more is set out in the first 7 specifications.
*27We take it that counsel understand that the office of an application for rehearing is not a prerequisite to prosecuting error to the Supreme Court.
Applications for rehearing are not authorized under the Code but are solely provided for under the rules of court (see Volume 50, Court of Appeals, first page). Application for rehearing should be prepared in triplicate and mailed direct to each member of the court and not filed with the Clerk of Court.
In this instance we note that the applications were filed in the clerk’s office on July 29, 1939.
This will not be harmful since same were promptly mailed to us by our bailiff.
Specifications 1 to 7 in the application will be overruled.
Under Specification 8 counsel urge that since all the evidence relative to the Brown claim is before this court, it is our duty to find and determine the proper amount that should be surcharged against Lewis C. Freeman, Administrator, according to the rule designated in our opinion.
No citation of authority is cited in support of this claim. We do not understand this to be the generally accepted method.
If we were hearing the matter de novo then we could and should determine the ultimate question on the evidence submitted. This is not the rule in an error proceeding.
It being our determination that the master and trial court erred in excluding certain testimony, proper procedure is to remand to the fact-finding court for determination of the amount after considering all proper evidence including that which we determined improperly rejected. Under certain circumstances a reviewing court might determine the amount to be recovered and thereafter so modify the judgment as would conform to such determination. In the instant case this rule would only be applicable if the evidence properly admitted, together with that which we determined to be improperly rejected, would permit of but one conclusion.
This is not the situation in the case at bar. Reasonable minds might very ’widely differ as to the proper amount and hence, it is our duty to remand.
Specification No. 9 raises the identical question as Specification No. 8 except it refers to the claim of Frederick W. Freeman, whereas No. 8 relates to the claim of Grover C. Brown.
The court in its original opinion following a usual custom did not make calculations or calculate interest but in proper cases this is generally left to counsel to do in the preparation of their entry. In the main this procedure might be followed in the instant case unless our determination of appellant’s application for rehearing under 11 (which we are sustaining) should render the determination of the ultimate amount of surcharge improper.
Specification No. 10 makes the claim that our original opinion is indefinite and uncertain in that we fail to direct whether the trial court should permit further testimony to be offered by the administrator in support of the Grover C. Brown claim, or should the redetermination of the surcharge against Lewis C. Freeman be determined from the evidence of the record as it now stands.
This is a question over which we have no control.
The cause was remanded for redetermination. It is up to counsel to decide whether or not they will submit the cause on the same record or present new evidence.
It is to be hoped that counsel will act sensibly so far as possible about the evidence already taken before the master.
It is highly probable that certain suggestions made in our original opinion might make it proper and necessary to at least supplement the evidence already presented.
Specification No. 11 raises the question that our original opinion is indefinite and uncertain as to the liability of Lewis C. Freeman for the appropriation by Frederick W. Freeman of certain securities.
*28We arc setting out in detail in our determination of appellant’s application for rehearing full data relative to the securities and hence need go no farther in this opinion.
Application of appellee for rehearing will be overruled.
HORNBECK, PJ. and BARNES, J., concur. GUERNSEY, J., (3rd Dist), sitting by designation, thinks the application for rehearing should be sustained to the extent required by the dissent of the original decision.