ON REHEARING.
(5) It is urged that the amendment of the statute (Code 1907, § 2846) by act approved September 22, 1915 (Acts 1915, p. 722), by adding thereto the provision, “And no presumption in favor of the correctness of the judgment of the court appealed from shall be indulged by the appellate court,” changes the rule heretofore prevailing in passing on the action of the trial court in granting or refusing to grant new trials. In Hackett v. Cash, 196 Ala. 403, 72 South. 52, the Supreme Court held that statutes designed to apply to cases where the evidence was given ore tenus before the trial court that require appellate courts to review the *670finding of facts by the trial court without any presumption in favor of the ruling of the trial court are an unwarranted invasion of the functions committed by the Constitution to the judiciary, and will be disregarded. This holding has been followed by both this court, and the Supreme Court in subsequent cases.— Finney v. Studebaker Corporation, 196 Ala. 422, 72 South. 54; Ross v. State, infra, 72 South. 759; Mulligan v. State, infra, 72 South. 761.
The other matters urged in the application do not warrant further discussion.
Application overruled.