This cause is before us on petition for rehearing pursuant to our judgment entered herein on May 16, 1939, or in the alternative that this Court do enter an order clarifying its judgment so as to make certain the rights of the parties and particularly whether or not the plaintiff in error may now present to the lower Court application for an order and judgment nunc pro tunc as of the date of the order of June 28, 1928, thereby vacating the default and final judgment and allowing the parties to proceed in the court below as if no default or judgment had been entered.

The effect on our opinion and judgment entered herein on May 16, 1939, was to hold that the order of the 28th day of June, 1928, in effect granted the motion filed June 23, 1928, in which it was prayed:

"Wherefore, the premises considered, the defendant moves the court to permanently stay said execution and to set aside said judgment and allow this defendant to sign and swear to said pleas and demurrer and to permit said cause of action to go to trial on its merits in due course and the defendant hereby offers and is ready, able and willing that the court try said cause forthwith on its merits." Although the order referred to did not in terms vacate and set aside the default and final judgment entered thereon.

It, therefore, follows that an order should be made in the court below formally vacating and setting aside the default and final judgment referred to in our original opinion and allowing the defendants in the court below reasonable time in which to plead to the declaration and thereupon to proceed to dispose of the cause according to law and the rules of practice. *Page 137

Our judgment, supra, is hereby modified so as to attain that end.

The petition for rehearing is denied.

So ordered.

TERRELL, C. J., and BUFORD, and THOMAS, J. J., concur.

WHITFIELD, J., concurs in opinion and judgment.

Justices BROWN and CHAPMAN not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.