On Motion to Modify Mandate.
Hackney, J.On the 24th day of May, 1896, the appellee filed with the clerk of this court his waiver of the right to petition for a rehearing, and, on the same day, the clerk certified to the clerk of the lower court the opinion heretofore rendered in this cause. On the 28th day of the same month the appellant filed its motion herein so to modify the mandate heretofore entered in this cause as to direct a judgment in its favor. To the latter motion the appellee enters a special appearance, and moves to dismiss the same, because, first, the opinion has been so certified down, and, second, because of the absence of merit in the motion.
Under section 674, Burns’ R. S. 1894, and rule thirty-seven of this court, jurisdiction is retained in this court for sixty days from the adjudication of a cause to entertain the petition for a rehearing by either party, and this right to be further heard cannot be defeated as to one of the parties by a waiver filed ■ by or on behalf of another. The motion to modify a mandate entered by this court in a cause, is in the nature of a petition for a rehearing, and may, at least during the time allowed for a rehearing, be filed on behalf of a party who has not waived it. The appellee’s motion to dismiss will, therefore, be overruled.
*208Tlie appellant’s motion should not be sustained for the reason that the error upon which the reversal was made primarily was that the court below had stricken from the answer certain contracts, which were thereby taken out of the issues. But for that ruling a reply and additional evidence might have presented the case in different form. That ruling was the evidence that the trial court, from the time the ruling was made, proceeded upon an erroneous theory.
While we have construed the contracts in the light in which they were presented by the record, we feel that with an error committed so early in the case, and that error followed throughout, it would be prejudicial to the rights of the appellee to deny him an opportunity to plead to either of such contracts when answered by the appellant.
The motion to modify is overruled.