
    Duff & Oney v. Rose, et al.
    (Decided December 6, 1912.)
    Appeal from Wolfe Circuit Court.
    1. Judgment — Taking As Confessed Allegation of Pleading — Modification of Opinion. — As the opinion apparently conveys the meaning that an order taking as confessed the allegations of a pleading cannot be set aside 'by the c.ourt at a subsequent term, except in the manner provided by the Code for vacating a judgment, it is modified by withdrawing the statement susceptible of such meaning.
    & Judgment — Interlocutory Order — Setting Aside. — Such an order, being merely interlocutory, can be set aside by the court at a subsequent term. What was intended to be said in the opinion was, that no cause was shown by the record for the setting aside of the order pro confesso at the subsequent term. The conclusion reached in the opinion on the merits of the case is adhered to. (For former opinion, see 149 Ky., 482.)
    S. G. SAMPLE, G. W. FLETCHER for appellant.
    A. F. BYRD and BYRD & NICKELL for appellee.
   Response to Petition for Rehearing by

Judge Settle

Overruling petition for rehearing.

A careful reconsideration of the record in this case, gives us no reason for withdrawing or changing the conclusion reached in the opinion on the merits of the case. The petition for a rehearing contains, however, a just criticism of that part of the opinion which apparently conveys the meaning that an order made hy the trial court at one term, directing that the allegations of the petition as amended he taken as confessed, could not be set aside at a subsequent term, except in the manner provided by the code for vacating judgments.

Manifestly such an order being merely interlocutory, can for cause be set aside by the court at a subsequent term. What should have been said, and was intended to be said in the opinion was, that the record showed no grounds for setting aside the order, pro confesso, at the subsequent term. The correction of this error had been made for the publication of the.opinion in 149 Ky. Reports, before appellee’s petition for a rehearing was filed.

The opinion is modified to the extent indicated, but in other respects adhered to; therefore, the petition for a rehearing is overruled.  