On Petition for a Rehearing.
Howk, J.Appellees’ learned counsel asks a rehearing of this cause upon the ground, as we understand him, that we mistook the record in holding, as we did, that “ the appellees have not properly saved and reserved in the record any questions for the decision of this court.” Did we mistake the record ?
In the general term of the court below the appellees assigned the following cross errors:
*413“ 1. The finding of the court was and is contrary to law;
“ 2. The finding of the court is not sustained by the evidence, and is contrary to the evidence;
“ 3. The court had no authority to change the agreement, or to render judgment for more than that agreed to, in the agreed statement and case;
“ 4. The finding of the court is excessive, and the amount for which the correction was made was and is excessive, and is contrary to law and the evidence; and,
“ 5. The court allowed more interest than that to which relator was entitled, and at a greater rate of interest than authorized by law.”
Each one of these cross errors stated matter which would have constituted a proper cause for a new trial, if the case had been one in which a motion for a new trial had been requisite or necessary. The appellant’s relator, in an agreed case, obtained a judgment of the court at special term for a peremptory mandate against the appellees, in their official capacities. The only “ matter of controversy ” between the parties in such agreed case was decided by the court in favor of the appellees, and, of course, they did not except at the time to the court’s decision. As to the rate of interest allowed by the court, it seems to us that the appellees, if not bound by their agreement, are in any event concluded by the judgment and decision of court, to which they saved no exception.
But there was a mistake in the agreed case, and in the record thereof and of the judgment thereon; and the relator filed a written motion to correct such mistake. It was a mistake in figures or amounts, apparent on the face of the record, and was so clear and palpable that it could not be controverted. It was not a motion for a nuno pro tuno order or entry; for the entry had been made at the proper time. But it was, as we have said, a motion to correct an apparent mistake in the record of the judgment. The court was fully authorized, we think, to correct such a mistake, if it existed, upon the motion or petition of either party. Jenkins v. Long, 23 Ind. 460; *414Miller v. Royce, 60 Ind. 189; Reily v. Burton, 71 Ind. 118; Mitchell v. Lincoln, 78 Ind. 531.
When the court at special term sustained the relator’s motion to correct the mistake in the record of this cause, the appellees at the time excepted. On the appeal to the court in general term, if the appellees desired to present any question in relation to the decision at special term, in sustaining the. relator’s motion, it seems to us that they should have there assigned, as a cross error, that the court at special term had erred in sustaining the relator’s motion to correct the alleged mistake in the record of the judgment. This was the only proper assignment of cross error to call in question the ruling of the court on the motion, either in the general term or in this court; and this cross error, as we have shown, the appellees did not assign in the general term, either inform or substance-We are of the opinion, therefore, that the appellees’ assignment of cross errors, in the general term below, did not properly present any question for our decision.
Besides, the substantial merits of the controversy in this case (except as to the relator’s claim for compound interest, which we have decided against him) were settled adversely to the appellees, in the case of Gray, Governor, v. State, ex rel. Coghlen, 72 Ind. 567. Upon all the questions decided therein the case cited must be considered as, at least, the law of this case.
The petition for a rehearing is overruled, at the appellees’' costs.