On Petition for a Rehearing.
Olds, C. J.— We fully considered the questions presented by the record in this case, and, as stated in the opinion, reversed it for the error of the court in overruling the motion of the appellant for a new trial. In doing so we fully considered all the evidence in the case. In concluding the. opinion we in effect said that the question would have been more properly presented by exceptions to the conclusions of law, but that the exceptions were not taken at the proper time, and hence we did not make any ruling as to that particular error.
The suggestion as to the exceptions to the conclusions of law was made for the reason that we were convinced the court also erred in its conclusion of law, though no question was properly presented, and therefore we could not reverse the judgment with instructions to re-state the conclusions of law.
Counsel for appellee, in their brief on petition for a rehearing, earnestly insist that there is no question presented by *260the motion for a new trial, for the reason, as we interpret their brief, that the motion for a new trial was prematurely-filed, but with this theory we can not agree. The cause was submitted to the court for trial, and on proper request the court made a special finding of facts. After the announcement of the finding of facts appellant filed a motion for a new trial, which was overruled. Exceptions were then taken to the conclusions of law, and thereupon the court appointed commissioners to make partition. Afterwards the commissioners reported. Appellants excepted to their report, and then the court rendered final judgment of partition, and apportioned the costs, and from this judgment appellants appeal.
The appeal was taken from the final judgment in the case, and the motion for a new trial was made and filed at the proper time, and exceptions reserved to the overruling of it. This is held to be the proper practice in the case of Jones v. Jones, 91 Ind. 72.
Under our statute a motion for a new trial may be made either before or after judgment, provided it be made and filed at the term at which the verdict or decision is rendered; or if the verdict or decision be rendered on the last day of a term, then upon the first day of the next term.
In Jones v. Jones, supra, it is held that the word “ decision,” as used in section 561, R. S. 1881, means “ finding.” Prior to the code a motion for a new trial could not be made after judgment. 1 Works Practice, section 868 ; Smith v. Thornburgh, 7 Ind. 144; Quinn v. State, 123 Ind. 59; Emison v. Shepard, 121 Ind. 184; Colchen v. Ninde, 120 Ind. 88; Ikerd v. Beavers, 106 Ind. 483.
It is unquestionably proper practice to make and file the motion for a new trial immediately after the verdict of the jury is returned or the finding of facts announced by the court.
We omitted any discussion in the original opinion of the technical objections made to considering the main question *261discussed, for the reason that it was clear that the sufficiency of the evidence to sustain the finding was presented by the motion for a new trial, and upon that question the'judgment must be reversed, and no good purpose would be subserved by discussing the other alleged errors.
Filed Dec. 9, 1890.The petition for rehearing is overruled.