The appellee has filed a petition for a rehearing, in this case, on the ground that the appeal was prematurely taken, and the case, therefore, not properly before the Court. It was conceded, in the opinion given, that the appeal was prematurely taken ;'but, on the filing of the petition for rehearing, we again inspected the record with care, and are satisfied that wé erred in our statement, on this point, in the original opinion.
The record shows these facts: At the December term, 1862, of the Vigo Common Pleas, Allen demurred to the complaint of the plaintiff, the demurrer was sustained, the plaintiff' appealed to the Supreme Court, and filed an appeal-bond, which recited, that “judgment was rendered by the said Court against the said plaintiff, and in favor of the said defendant, this 80th day of December, 1862, from which judgment the said plaintiff has appealed,” &c.
Smith & Mack, Voorhees & Risley, and McDonald & Roache; for the appellant R. W. Thompson, B. B. Moffatt, H. D. Scott, and Newcomb & Tarkington, for the appellee.But the clerk did not enter a final judgment on the ruling upon demurrer.
The record further shows, that, afterwards, the plaintiff moved, on notice to the defendant, for a nunc pro tunc entry of such final judgment, and that, at the August term, 1868, “the Court being advised,.it is ordered that the record be amended, and that final judgment be rendered, in this ease, as asked for in said motion, on the ruling of the Court, at its December term, 1862, upon the demurrer to the last amended complaint, nunc pro tune, as follows, to-wit: It is considered by the Court, that the plaintiff take nothing by his suit, and that the defendant go hence,” &c.
Thus the final judgment of the Court is rendered as of the December term, 1862.
What misled us in the original opinion, was the explanation which the Court below appended to the judgment, and which we copied, as to the consideration, by which it was influenced in rendering the judgment; but we are satisfied that that explanation does not avoid the judgment, so as to reader an appeal inoperative.
The petition for rehearing is oven’uled.