The opinion
On Petition for Rehearing.
Tremain, J.
In his petition for a rehearing the appellee insists that no question is presented to this court for the reason that the appellants filed a motion in arrest of judgment prior to filing the motion for a new trial. Authorities are cited to sustain that proposition. Watson’s Revision of Works Practice and Forms, Vol. 2, §1907, collects many authorities sustaining this proposition, and then says:
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“So long as this rule stands, a motion in arrest of judgment should not be made until after a motion for a new trial, if it is desired to make one, but the rule should be changed, as there is no more reason why filing a motion in arrest of judgment should preclude the filing of a motion for a new trial than there is that a motion for a
venire do novo
or a motion for judgment on the answers to interrogatories should have that effect. The rule was established by • the common law and never should have been applied after the adoption of the code.”
However, the case at bar does not present a situation where this rule is applicable. The record in this case discloses that on the same day three motions were filed in the lower court: (1) A motion to modify the findings of the court, (2) a motion in arrest of judgment, and (3) a motion for a new trial. After argument of counsel and consideration, these motions were overruled simultaneously. Since the motions were filed together and ruled upon at the same time, this court will indulge in the presumption that the trial court followed the rule of practice long in force in this state, and considered the motion in arrest of judgment as having been filed after the motion for a new trial. It has been held that where the two motions are filed and pending at the same time, and, there being nothing to the contrary, it will be presumed that they were ruled upon in their proper order. Elliott’s General Practice, Vol. 2, §995;
Habersham
v.
Wetter
(1877), 59 Ga. 11 ;
Pope
v.
Latham
(1838), 1 Ark. 66 ;
Jewell
v.
Blandford
(1838), 7 Dana (Ky.) 473;
Water, etc., Co.
v.
Gildersleeve
(1888), 4 N. Mex. (Gild.) 171, 16 Pac. 278 ;
Farmers’ Bank
v.
Bayliss
(1867), 41 Mo. 274 .
The rule that the filing of a motion in arrest of judgment precludes the filing of a motion for a new trial is technical. If the appellee is to receive any advantage from it, the burden is upon him to establish affirmatively by the record that it preceded
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the motion for a new trial. The appellee does not present a record affirmatively disclosing a situation upon which he relies.
Other questions presented in the motion for a rehearing merely review the questions decided in the original opinion. After a careful reconsideration of these questions, the court is of the opinion that the motion for a rehearing should be and is overruled.
Treanor, J. dissents.