The following opinion was filed April 25, 1889:
Taylor, J.A motion for a rehearing has been filed in this case mainly upon the ground that the remittitur should *66have directed further proceedings in the case, instead of directing the circuit court to enter judgment for the defendants.
The learned counsel is undoubtedly correct as to the form of the remittitur upon the reversal of an order made during the proceedings in an action in the court below. The mistake made in this case was induced in part by the fact that the bill of exceptions purported to contain all the evidence given on the trial in the court below, and by the fact that the order appealed from was made by the court on the trial of the action and after the plaintiff had produced all his evidence and rested his case. Upon the record returned to this court we were very clearly of the opinion that the plaintiff was not entitled to the relief prayed for in his complaint, or to any other relief, and we therefore directed judgment for the defendants, believing that it was the understanding of the parties that the rights of the parties in the action should be determined upon the proofs as found in the record. We are now informed that evidence of other irregularities was offered on the trial by the plaintiff, and this seems to be admitted by the counsel for the appellant. That being admitted to be a fact, we think the remittitur should be corrected so as to simply reverse the order appealed from and direct further proceedings by the circuit court according to law, and the clerk will so correct the judgment and remittitur.
As this correction would have been made' by calling the attention of the court to the error, without making a formal motion for a rehearing, the motion for a rehearing is denied, but without costs to either party.
By the Court.— Ordered accordingly.