Southard v. Johnson

Per Curiam.

By per curiam order we affirmed the judgment in this case on December 17 because the record failed to show any order of court overruling motion for new trial. Therefore, no error of court is made to appear.

On petition for rehearing it is contended that the record shows by implication that motion for new trial was denied by the Judge of the Circuit Court. This would require us to indulge in assumption, which we are not permitted. This Court is bound by the record and, for all the record shows, the motion for new trial is still pending undisposed .of by the Circuit Judge. Motion for new trial may be presented after judgment is entered. Therefore, the entry of *714 judgment is not equivalent to an order overruling motion for a new trial.

Petition for rehearing denied.

Ellis, P. J., and Terrell and Buford, J. J., concur. Whitfield, C. J., and Brown and Davis, J. J., concur in the opinion and judgment.