¶1APPLICATION FOR REHEARING
¶2No. 465.
¶3Decided Dec 27, 1940
¶4The above entitled cause is now being determined on defendant-appellant’s application for rehearing.
¶5In effect the application is a rearrangement of Assignments of Errors Nos. 1, 2, 3 and 5.
¶6The only assignment needing any special attention is No. 3. The writer of the original opinion sought to check the bill of exceptions very carefully before making the observation that the jury received the case in the forenoon and decided it at 2:45 P. M. We do not have the file before us at this time and do not deem this matter of sufficient importance to have it returned to us, but we will assume that counsel for appellant is correct when he says that *313the ease was received by the jury one day and was not decided. until the afternoon of the following' day.
¶7Under these conditions, our conclusion would not be changed but the reason therefor would be. If the case was received by the jury in the forenoon 'and decided in the afternoon of the same day, we would have no difficulty in determining that the case was not held before the jury an unreasonable time. If, on the other hand, the case was submitted to the jury on the morning of one day and was not decided until 2:45 P. M. on the following day, the question is presented in a different way. The complaint is made that the observation of the trial court in connection with the unusual delay was prejudicial.
¶8The length of time the trial court will hold the jury in its consideration of a submitted case is within the sound discretion of the trial court, and will not be held prejudicial unless the reviewing court should conclude that the losing party was prejudiced thereby. We are not able to so determine.
¶9We want to assure counsel that our final conclusion under special assignment No. 5 was not as he feared tempered by any thought on the part of the court that counsel for appellee or appellant had purposely misled the court in their statement under Assignment No. 3. Such a thought never entered our minds.
¶10The application for rehearing will be overruled.