On Petition for Rehearing.
Wiley, J.Appellant and appellees Maddox and Bauer have filed a petition for a rehearing, and have assigned eight reasons therefor. They have attacked, as erroneous, each holding of the court in the original opinion. Upon a reexamination of the questions involved and decided, we see no reason to recede from the conclusion announced. There is one question, however, which the parties are entitled to *442have reconsidered, but this can be done without granting a rehearing, and without doing injustice to any one.
5. In the original opinion it is said: “The seventh and eighth assignments are based upon alleged error in refusing to sustain an application for a change of judge. The action of the court complained of should have been stated as a reason for a new trial, and error assigned upon the overruling thereof.” The rule thus declared is the law in this jurisdiction, but it is not applicable to the unusual and peculiar facts disclosed by the record here. By an inadvertence the fact was overlooked that the motion for a new trial for cause had been ruled upon before the motion for a change of judge had been made.
6. After motions for a new trial for cause by appellant and appellees Bauer and Maddox had been overruled, and at the same term of court, they each filed motions for a new trial as of right, and also filed bonds as required by statute, which bonds were approved. At the subsequent term appellant offered to file her motion for a change of judge, and supported the same by affidavit. In her affidavit she stated that she could not have a fair and impartial trial “of said cause before the Hon. Orion B. Harris, judge, before whom said cause is now pending, on account of the bias,” etc. This offer to file motion, etc., for a change of judge was overruled, as was also the motion for a new trial as of right.
Under this statement of the facts it is apparent that the overruling of the offer to file a motion for a change of judge could not have been made a reason for a new trial for cause, for such motion had been overruled and final judgment pronounced. We are, therefore, confronted with this question: After the trial court assumes jurisdiction, without objections, and proceeds with the trial to final judgment, can such jurisdiction be ousted pending a motion for a new trial as of right, upon the facts disclosed by this record ? Jurisdiction is authority to hear and determine a cause. *44317 Am. and Eng. Ency. Law (2d ed.), 1041, and authorities there cited. A motion for a new trial as of right is a remedy given litigants by statute, when they apply for it in cases where such remedy is allowable. If the jurisdiction of the presiding judge can be ousted by an application for a change of judge, where the only question for determination is that presented by a motion for a new trial as of right, then upon the same reasoning such jurisdiction could be ousted upon an application for a new trial for cause. Both of such motions are incidents to the final determination of the cause. There is no provision in the code, and no established precedent which authorize a change of judge, under the facts in this record.
The petition for a rehearing is overruled.