ON Petition for a Rehearing.
McBride, J.The appellee has asked for a rehearing. Reconsideration of the case only confirms us in the correctness of the conclusion reached. The petition for a rehearing is therefore overruled. The appellant asks for a change of ■ the mandate, and that, instead of ordering a new trial, the court direct the Fulton Circuit Court to render judgment in appellant’s favor on the general verdict.
While it is possible that by such an order no injustice would be done, and that substantial justice would be done, the possibility of injustice as the result of such a mandate is *180too great to justify the court in making it. We are not able to say from the record that there may not have been errors on the trial against the appellee which, if presented by a motion for a new trial, would have compelled a reversal.
When the court below sustained the motion for a judgment in the appellee’s favor on the answers to interrogatories, notwithstanding the general verdict, there was no longer reason or ground for a motion by it for a new trial.
As matter of course, also, there was no reason for bringing into the record by bills of exception any errors which may have been committed on the trial, and of which the appellee could only avail itself by a motion for a new trial and by bills of exception. Rules of practice must be general, and should be framed with a view to insuring, so far as possible, just results in all cases, and minimizing the danger of injustice being done to parties in any case.
It is true that in the record, as it comes to us, we find nothing to indicate that the trial was not fair, and that a correct result was not reached *by the general verdict. Nor do we find any thing to indicate that there was any error against the appellee. We can not, however, close our eyes to the fact that with the sustaining of the motion for a judgment non obstante the proceedings closed, and that the appellee could not thereafter file its motion for a new trial, and thus bring possible errors into the record.
Section 660, R. S. 1881, provides that “When the judgment is reversed, in whole or in part, the Supreme Court shall remand the cause to the court below, with instructions for a new trial, when the justice of the case requires it.”
In Buskirk Practice (p. 334), it is said that “A cause is never remanded with particular instructions relative to the judgment to be rendered, unless all the facts necessary to a complete and final determination of the cause are in the record.” See, also, Works PI. and Prae., section 1106. That can not be said in a cause terminating as this did. If .the *181motion for a judgment non obstante had been overruled, it would be different.
Filed Jan. 9, 1892.Petition to change mandate overruled.