
    MANDAMUS — NEW TRIAL.
    [Lucas (6th) Circuit Court,
    January 18, 1908.]
    Parker and Wildman, JJ.
    (Haynes, J., not sitting.)
    State ex rel. Orleano G. Barnes v. E. L. Kimes.
    1. Clerk Cannot be Compelled to Enter Judgment Pending Motion to Vacate Verdict.
    Mandamus will not lie to compel a clerk of court to enter judgment upon a verdict in favor of the plaintiff, during the pendency of a motion by the defendant to vacate the judgment.
    2. Motion to Vacate Verdict Amended by Insertion, “and por a New Trial.”
    A motion asking that a verdict “he vacated,” hut not' in terms asking for' a new trial, may, at the same term, although more than three days after the rendition of the verdict, he amended hy leave of court by the in-' sertion of the words, “and for a new trial.”
    [Syllabus approved by the court.]
    Mandamus.
    C. A. Thatcher, for plaintiff.
    Marshall & Fraser and King & Tracy, for defendant.
   WILDMAN, J. ,

The facts involved in this proceeding for a mandamus afe, briefly,as follows: An action was brought July 25, 1906, by Orleano G-. Barnes against the Toledo & Interurban Ry. Co., for damages caused by personal injury, received, as claimed, through the negligence of that company. A verdict for the plaintiff was-rendered at the January term, 1907, which was subsequently set aside, upon the ground'that the damages were excessive, disclosing prejudice. The case was again tried and another verdict obtained by the plaintiff for the sum of $7,200. A motion was filed which asked that this verdict be “vacated,” but not in terms ashing for a new trial.

The statute first to be considered is Kev. Stat. 5305 (Lan. 8821), providing, after a definition of the term “new trial,” that “the former verdict, report, or decision, shall be vacated, and a new trial granted, on the application of the party aggrieved, for any of the following causes affecting materially the substantial rights of such party.”'

It is contended by the relator that this was not a motion for a new trial and could not be considered by the court as such.

At the same term, on December 23, 1907, the court, by order, allowed an amendment of this motion, inserting the words “and for a Hew trial.” It is claimed by counsel for the relator that the court had ho jurisdiction or power to do this; and also that the time having passed for the filing of a proper motion for a new trial, it was the duty of the clerk, under another section of the statute, to enter a judgment upon the verdict.

Now it is to' be noted that the court has but one duty to do under tie statute, if it vacates a verdict — unless, of course, some further proceedings are taken by the parties prior to the judgment, as, for instance, a settlement, or dismissal of the action. Revised Statutes 5307 (Lan. 8823) provides that:

“The application for a new trial must be made at the term the ■verdict, report, or decision is rendered.”

And Rev. Stat. 5308 (Lan. 8824):

“The application must be made by motion, upon written grounds, filed at the time of making the motion.”

Nothing has been said in discussion, that I recall, placing any ■emphasis upon the fact that in this section it is not provided that the ■motion for a new trial must be in writing. The statute does not say that “the motion or application must be in writing,” but that “the .application must be made by motion, upon written grounds,” in other words, the grounds or facts upon which the party bases such an application must be presented to the court in writing, to apprise the court and the opposite party of the reasons upon which the application is made; but I am not aware of any provision of the statutes requiring that the application itself shall be in writing. However this may be, there was evidently an attempt here by the party against whom the verdict was obtained to invoke the jurisdiction of the court to set aside the finding of the jury. There is no prescribed form anywhere in the ■statutes for a motion for a new trial. It is the substance of things and not the superficial form, that should determine such controversies, and if there is any irregularity in the form of a motion, it should, under •another provision of the code, be disregarded, unless it cause some prejudice to the person or party against whom the motion is addressed. Every error and irregularity is to be disregarded unless it be a material ,and substantial one, and unless it does inure to the prejudice of the party who complains of it. We think, then, that the court had a right to permit an amendment of the motion by insertion of the words, “and for a new trial,” although we doubt much whether an amendment was necessary.

This brings us to the question whether the-court had jurisdiction to pass upon the motion. The plaintiff below filed a motion to direct tbe clerk to enter judgment on the verdict, and, on another motion by the defendant, this motion of the plaintiff was stricken from the Bless, No error proceeding has been brought to this court to reverse that? action of the court, although it is claimed by counsel upon one side at-least, that the order of the court striking from the files the motion for' a direction tó the clerk to enter judgment, was such a final order as: might be made the basis of a proceeding in error. It is not necessary for us to determine whether or not this is so.

The court upon vacating the verdict granted a new trial. It is claimed here again, that the court had no jurisdiction to do this, because of the fact that the verdict rendered at the first trial had. been set aside by the court upon the ground, as here insisted, that it was against the evidence, and that the statute does not permit the vacation of a judgment and the granting of a new trial twice for that cause.

On the other side it is claimed that the two orders of the court for new trials were not of the same character; that the first was not the setting aside of a verdict upon the ground that it was against the evidence; but, rather, that the verdict was for excessive damages, a violation of another clause of the statute as to new trials, “excessive damages, indicating passion or prejudice.” We think as to this point that it is not necessary in this proceeding to determine the question.. We do not think that the question whether or not the court had power to grant a second new trial upon the cause assigned was jurisdictional. The court had jurisdiction to pass upon the motion and either grant it or refuse it. The court having the jurisdictional power to make the order one way or the other, the party had the right to except and protect himself by proceedings in error at the proper time. It is true he-might not be able to go to the higher court immediately from the court.of common pleas upon the granting of a new trial even if such grant--ing was erroneous; but he could preserve his rights, and it might not"be necessary for him to go any higher, because, upon another trial, bsih: verdict and judgment might be in his favor.

The relator is here asking for a writ of mandamus to compel tí» clerk of the court, Mr. Kimes,-to enter judgment upon the verdict as-rendered at the September term. We hold that he is not entitled to.’ the writ. It was not the duty of the clerk, during the pendency of ac ■ motion addressed to the judge asking for a vacation of the verdict, to ■ enter judgment upon it. The statute should not be so narrowly and technically construed as urged by counsel.

The writ sought is refused and the petition dismissed at the eosfe of the relator.  