On petition for rehearing.
Strahan, C. J.— Counsel for appellant have filed an application in the nature of a petition for rehearing as to that part of the judgment directing a new trial, on the ground that the findings of fact in the record entitle them to a direction from this court that final judgment be entered in favor of the appellant on the findings of fact. That question is an important one in practice, but it was not made by the appellant upon the argument, nor suggested until after the entry of judgment here. The respondent, therefore, had no convenient opportunity to consider or answer ih No doubt in most cases tried by the court without a jury, where the court errs in its conclusions of law, and the judgment is reversed for that reason, the better practice is for this court to correct the findings of law and direct what judgment shall be entered; but in such case the appellant ought to insist on that mode of procedure at the argument, when the whole question can be considered, and not wait till a new trial is awarded and then suggest the question for the first time.
A new trial can result in no injury to either party, and, under the circumstances of this case, the application for rehearing will be denied.
In the cases of Coulter v. Rash, and Coulter v. Warner, the same question is presented, and the like order will be entered.