
    COURTS — NEW TRIAL.
    [Lucas (6th) Court of Appeals,
    June 7, 1916.]
    Richards, Kinkade and Chittenden, JJ.
    Adolph Brand v. Michael Murray et al.
    Justice of Peace May Grant New Trial Because Verdict is Contrary to Law, not Sustained by Sufficient Evidence and Error in Admission of Evidence.
    The authority of a justice of the peace to grant a new trial is not limited to the grounds named in Sec. 10352 G. C., but since the amendment in 1902 of Sec. 6565 R. S., as now contained in Sec. 10361 G. C., a justice of the peace may also grant a new trial on the grounds named in that section.
    [Syllabus by the court.]
    Application for rehearing of motion to sirike hill of exceptions from the files.
    
      
      C. 8. Curtis, for plaintiff in error.
    
      Lawton é Saalfield and J. I. O’Connor, for defendants in error.
   CHITTENDEN, J.

This cause is being considered on an application for rehearing of a motion to strike from the files the bill of exceptions for the reason that' the same was not signed within the time required by statute. The cause was tried before a justice of the peace who rendered a decision and entered judgment on December 7, 1915. On December 10, 1915, a motion for a new trial was filed. The hearing on this motion was adjourned from time to time, and the motion was heard on December 20, 1915, and was overruled, exceptions noted and ten days allowed for the filing of a bill of exceptions. The bill of exceptions was signed and filed on December 29, 1915. The motion for a new trial was based upon several grounds, among others, that the judgment rendered is contrary to law, that it is not sustained by sufficient evidence and because of error in the admission of evidence.

It is contended by defendants in error that the exceptions should have been prepared, allowed and signed within ten days from the entering of the judgment, and that the motion for a new trial filed by the defendant below, not being based upon statutory grounds, can not operate to extend the time for the signing of such bill of exceptions. It is contended that the authority of a justice of the peace to grant a new trial is limited by the terms of Sec. 10352 C-. C., which, in substance, provides that a new trial may be granted when the justice is satisfied that the verdict was obtained by fraud, partiality or undue means, and that the causes mentioned are the only grounds for a new trial, and apply only when the ease is tried by a jury.

Reliance is had upon the ease of Thompson v. Ackerman, 32 Circ. Dec. 456 (21 R. 740), and that decision does sustain the proposition contended for by defendants in error. That decision was rendered in 1901 when there were no grounds for a new trial except those contained in Sec. 6560 R. S., now 10352 (3. C. At the time of that decision See. 6565 R. S., now 10360, 20361, 10362 and 10363 G. C., was in the form found in 93 0. L. 104. See. 6565 R. S., as there enacted, referred to no grounds for a new trial in addition or supplemental to Sec. 6560 R. S., and the same situation is true as relates to the decision of the Supreme Court in State v. Langenstroer, 67 Ohio St. 7 [65 N. E. 152], the facts in the latter case bringing it under the act found in 93 O. L. 1.04.

In 1902 See. 6565 R. S. was amended, and by the terms of the amendment additional grounds for a new trial were incorporated therein, as found in See. 10361 G. C., its provisions now being that if the “exception is to the decision of the court on a motion to direct a nonsuit or to arrest the testimony from the jury, or for a new trial because the verdict, or if the jury is waived, the finding of the court is against the law and the evidence, or on the admission or rejection of evidence, the party excepting must reduce his exceptions to writing” and present them to the trial justice within the time limited by the same section (now Sec. 10360 G. C.), which is within “ten days from the date cf overruling the motion for a new trial,” if such motion be made, etc. It will be seen that a radical change in the terms of Sec. 6565 R. S. was made by this amendment, and that the decisions cited by defendants in error were rendered with reference to the law as it stood before the amendment. The wording of the sections as now found in the. General Code is, we think, plain and unambiguous, and we hold that the bill of exceptions wai filed within the time provided by statute.

The application for rehearing will be denied.

Richards and Kinkade, JJ., concur.  