On Petition for Rehearing.
Hottel, J.— Appellee urges that a rehearing should be granted in this case, and as grounds therefor insists (1) that the appeal was taken under §669 Bums 1908, §630 E. S. 1881, presenting a reserved question of law, and that under such an appeal a consideration of the evidence is not proper; (2) that the appellant waived the point on which the decision was reversed; (3) that the opinion is wrong even on the merits of the question presented by the appeal.
9. On the first ground of the petition, it is sufficient to say, that while it is true that the record discloses that appellants first notified the court that they would appeal on a reserved question of law under §669, supra, the record further discloses that after such notice and the filing of the bond perfecting such appeal, and within the time allowed by the statute, appellants filed their motion for new *177trial of said case which, was by the court overruled and an appeal prayed, and time was again given in which to file bond, and the second bond was filed and appeal perfected thereunder.
The mere fact that, appellants had notified the court of their intention to perfect an appeal, presenting a reserved question of law, did not prevent them from afterwards perfecting their appeal under the general provisions of the practice act, which they did in this case. This is -expressly decided by this court in the case of McKendry v. Sinker, Davis & Co. (1891), 1 Ind. App. 263, 27 N. E. 506.
10. In answer to the second ground of this petition we submit that one of the errors relied on for reversal by appellants was that “the court erred in overruling appellants5 motion for a new trial.55 Under their points and authorities, appellants cited the section of the statute which provides for an appointment of an administrator, and which imposes on the court the duty of examining the applicant for letters. Appellee in his brief also presented the question to the court as follows: ‘ ‘ The transcript, page 21, lines 26 to 28 and page 22, lines 17 to 21, shows that no evidence of any kind whatever was heard or offered or introduced either in support of the petition to revoke letters, or the petition for letters.55 Thus it will be seen that if appellants had in no manner presented the question, appellee in his brief presented the matter to this court in such a way that the court was bound to know that the lower court had acted on appellants’ petition in violation of the terms of the statute, supra, which required it to examine the applicant under oath. Under such circumstances, it was apparent that the ends of justice would best be served by granting a new trial, and when such fact appears, it is the duty, and has always been the rule of the court, to grant a new trial, rather than to render-judgment in favor of the appealing party.
We see no reason for changing the original opinion on the *178merits of tire question presented. "We think the conclusion reached is amply supported by the authorities therein cited.
Petition for rehearing overruled.
Note. — Reported in 96 N. E. 190, 97 N. E. 124. See, also, under (1, 3) 18 Cyc. 114; (2) 3 Cyc. 164; (4, 5) 18 Cyc. 124; (6) 18 Cyc. 86; (7) 18 Cyc. 151; (8) 18 Cyc. 124, 168; (10) 3 Cyc. 455. As to the grounds effective for the removal of an executor or administrator, see 138 Am. St. 525.