On petition eor a rehearing.
Perkins, J.April 24th, 1878.
A petition for a rehearing has been filed and duly considered. It makes two points:
1. That the court is wrong in holding, that a bill of exceptions is necessary to present to the Supreme Court the grounds of decision in the court below on motions, etc., not required by statute to be made in writing, where the grounds are not entered in the decision.
In this, there was no error. We cite Ferrier v. Deutchman, 51 Ind. 21; Vanderkarr v. The State, 51 Ind. 91; Scotten v. Divilbiss, ante, p. 37.
2 That the court is in error, in holding that the motion for a venire, de novo was made out of proper time.
That motion was made after a motion for judgment on the general verdict and answers to interrogatories, taken together, made by the same party, had been sustained, and judgment thereon given, as set forth in the original opinion. It is said, in Jenkins v. Parkhill, 25 Ind. 473, that, in logical sequence, a motion for a venire die novo comes before a motion for a new trial. But, waiving the question of the time of the motion, it may be observed, that a motion for a venire de novo is not provided for in our code of practice. It is a resort to common-law practice in this particular, adopted by our courts. Bosseker v. Cramer, 18 Ind. 44, It may be granted by the court in a proper case; and, had it been granted in this case, this court might not have set aside the grant. The nisi prius court had much discretion in the matter. The appellate court will not interfere, unless it appears that there has *95been an abuse of that discretion. It does not appear, in this ease, that that discretion was abused'. See Mason v. Palmerton, 2 Ind. 117.
It may be further observed, that the motion for judgment, mentioned in the opinion, was general and special. There was no motion to set aside that rendered, and render a different one. If that rendered was not the proper one, wo are not prepared to say that the verdict and special findings were not sufficient to uphold the proper judgment, if steps that might have been taken had been taken to obtain the entry of such judgment.
We can not say that a venire de novo was necessary.
Petition for a rehearing overruled.