On Petition for a Rehearing.
Howard, J.In asking for a rehearing of this case, counsel for appellee say that the reversal of the judgment as to the appellant could not have the effect to reverse it as to any party or parties not appealing. We agree with counsel in this. James B. Michener is the sole appellant here, and the reversal as to him leaves the judgment undisturbed as to those not appealing. Marsh v. Morris, 133 Ind. 548.
While it is true, as counsel insist, that where there is evidence for and against the finding of a necessary fact, the finding as made below will not be disturbed, *195yet it is our duty, in a proper case, to decide, as we have done in this case, whether there was a failure of evidence to support a material issue involved. Butterfield v. Trittipo, 67 Ind. 338; Cleveland, etc., R. W. Co. v. Wynant, 134 Ind. 681.
Filed September 27, 1893.The petition for a rehearing is overruled.