On Petition for Rehearing.
PER CURIAM.By opinion filed on June 2, 1950, this court reversed the action of the trial court in reducing the finding of the jury from $3,719.28 to $1,750.00 (this latter amount was subject to a credit of $500.00, thus bringing the final figure to $1,-250.00), and remanded the case to the circuit court for a new trial. It was held that in a mechanic’s lien case, when a jury is called upon demand of either party, its finding is final, as in a law case, unless set aside by the court in accordance with the procedure indicated in the opion.
*211It is pointed out in the petition for rehearing filed by appellants in this case, that no motion for a new trial was made before the trial judge by either party, and no exception was before this court as to the validity of the verdict; hence this court by its action in remanding the case for a new trial has, in effect, gone contrary to the decision rendered, by setting aside in to to the verdict of the jury, which finding it held to be final.
The record in this case shows beyond question that the trial court in exercising the assumed power to review and modify the finding of the jury, did so because of the dicta expressed in Metz v. Critcher, 83 S. C. 396, 65 S. E. 394. Unquestionably, if the trial court had not acted as it did upon the supposed authority of the foregoing case, it would have granted a new trail nisi. If this course had been followed, then it may reasonably be inferred that the case would have been appealed to the Supreme Court by the appellants, in which event the respondents would have had the opportunity to attack the validity of the verdict.
Evidently the reduction of the verdict by the trial court was satisfactory to the respondents, and they took no appeal therefrom. But if, as now contended by the appellants, the finding of the jury in the sum of $3,719.28 should be ordered to stand as the judgment of the court, then the respondents would be deprived of the right and opportunity to attack the verdict.
This question received the most serious consideration of the court in the preparation of the opinion, and we deemed it in futherance of justice that the case be remanded for a new trial.
Petition refused.