On Petition for Rehearing.
Ibach, J.6. Appellee urges on petition for rehearing that under the decision in Shroyer v. Campbell (1903), 31 Ind. App. 83, 67 N. E. 193, appellant should be held to have waived its request for a special finding of facts. The present case can be distinguished from that case, in which it was held that a failure to object to the court’s making a general finding is a waiver of the request for a special finding, for in that case it does not appear that the coui’t ever ruled on the request for a special finding, or refused to make one, but merely failed to do so, its only ruling being by taking contrary action.
*464In the case of Lehman v. City of Goshen (1912), 178 Ind. 54, 98 N. E. 1, 710, where it was held that failure to object to the court’s making a general finding was a waiver of the request for a special finding, the court refused to find specially because the request did not comply with a rule of the court, and no objection was made or exception taken to the refusal. In the present case it appears that the request was made within the time- and in the manner required by the rules of the court, that the court overruled the request, and appellant excepted, and at the time prepared a special hill of exceptions, which is a part of the record here. Appellant had a right to a special finding and where as in this case, the court positively refused a proper request, and appellant properly saved the question for review, its failure to object to a general finding was not a waiver. Appellant had done all in its power to secure a special finding.
The petition for rehearing is overruled.
Note. — Reported in 105 N. E. 645; 107 N. E. 296. See, also, under (1) 29 Cye. 1273; (2) 29 Cye. 1275; (3) 2 Cye. 670; (4) 16 Cye. 413, 417; (5) 38 Cyc. 1937, 1956; (6) 38 Cye. 1990.