On Petition for a Rehearing.
Niblack, C. J.The appellee’s petition for a rehearing is accompanied by an elaborate review of the authorities cited as supporting the conclusion reached by us in overruling the motion to dismiss this appeal, and by a carefully prepared argument in opposition to the conclusion thus reached.
*342It is urged that the opinion announced as above will, if adhered to, not only expressly overrule the cases of House v. Wright and White v. Harvey, referred to by it, but will also impliedly overrule other early cases decided by this court, and be against the current of authority in other States; that public policy requires that courts shall avoid instability in their decisions as far as possible, citing Harrow v. Myers, 29 Ind. 469, and that neither public policy nor the ends of justice will be promoted by adhering to the conclusion reached at the former hearing. It is true that indecision, instability and inconsistencies in judgment ought to be carefully guarded against by all courts, and especially courts of last resort, and that by a want of care in these respects the standing and influence of a court may be greatly weakened in public estimation. But, unfortunately, there is no court within our knowledge, which has had an existence for any considerable length of time, that has not felt constrained, under the pressure of a more' careful or a more extended examination, to overrule cases previously decided by it.
In the administration of justice, as in all human affairs, there are currents and counter-currents, resulting from ceaseless enquiry and discussion, which carry us sometimes in one direction and then again in another, and which often urge us beyond the limit which precedent has prescribed for us. This not unfrequently leads either to the modification or the abrogation of old rules of practice or of decision, and to the substitution of others more in accordance with the teachings of experience. Because of the uncertainty which these new departures are likely to impress upon the public mind, they are usually the subject of regret, but they are none the less seemingly inevitable. When a court comes to the deliberate conclusion that it has made a mistake upon some former occasion, it is generally better, looking to future permanency and repose, that it shall frankly acknowledge its mistake and declare the true doctrine as it should havebeenatthe time announced. When, however, a decision has become an established rule *343■of property it is never overthrown except from the most urgent considerations of public policy. To that extent only are the ■ courts ordinarily restrained from attempting to repair mistakes which they may have made.
New departures in matters of practice, as well as in the application .of legal principles, are more likely to occur under a code largely experimental in its inception, and in a court like ours, where the personnel of the tribunal necessarily undergoes frequent, and sometimes radical, changes. But the earlier cases relied upon by the appellee are not for the first time overruled in this case. They have been in effect overruled by several more recent cases, cited in the original opinion, and can not be now followed without overruling these more recent, and, as we think, more carefully considered, cases.
Much of the apparent conflict between the cases referred to in argument has arisen from a failure to observe the essential difference between an application for a new trial made during the term, and an independent proceeding to obtain a new trial instituted after the close of the term. In the first case, the order which disposes of the application is only an interlocutory order, subject to the control of the court until final judgment, and only capable of being reviewed in connection with other proceedings in the cause in which it was made. In the latter case, the proceeding being an independent one and having but a single object in view, the order which makes a final disposition of the cause is necessarily a final order, and hence a final judgment, within the meaning of section 632 of the civil code.
The appellee concedes that in the latter ease the applicant may appeal to this court when a new trial is refused, but insists that the respondent can not appeal when a new trial is granted. We fail to observe any sufficient reason for such a -distinction. To enable us to allow an appeal in the one contingency, and to refuse it in the other, would require us to consider the proceeding an independent one for some purposes and an interlocutory one merely for other purposes, which *344would be in opposition to many of the decided cases cited by us in the opinion, which have held it to be in all respects an independent proceeding.
Original opinion filed at November term, 1882. Opinion on petition filed at May term, 1883.We agree that appellate courts are reluctant to reverse a case upon the ground that a new trial has been improperly granted, upon the theory that the granting a new trial rests largely in the discretion of the nisi prius court, and upon the ground that the erroneous granting of a new trial is likely to be ultimately less injurious than the erroneous refusal of’ a new trial.
But the discretion vested in the nisi prius court is a judicial discretion, and will be reviewed when a proper case is presented. The right of appeal from a final judgment granting a new trial is in no manner abridged because of the large discretion reposed in that respect in the nisi prius court.
Before the right to grant a new trial in a cause became a conceded right, it was not an unusual thing for parties feeling themselves aggrieved to institute a suit in chancery to obtain a new trial in an action at law. It will, we assume, not be pretended that the decree which was ultimately entered in such a suit, upon the merits of the controversy, was not in all respects a final decree in that cause. The proceeding provided for after the close of the term by section 563, R. S. 1881, under which the complaint in this case was filed, is quite analogous. to, and is practically a substitute for, a suit in chancery for a new trial, and the final order in such a proceeding is the equivalent of the final decree in such a suit in chancery.
When, therefore, under this statutory proceeding, a party has been deprived of the benefit of a judgment which he has obtained, he may appeal to this court and invoke, its judgment upon what has been already done, before proceeding further in the original action.
The petition for a rehearing is overruled.