
    MERRELL v MATT et
    Ohio Appeals, 1st Dist, Hamilton Co
    No 4034.
    Decided Feb 29, 1932
    Charles G. Williams, Columbus, for plaintiff in error.
    John Scanlon, Cincinnati, for defendants in error.
   ROSS, PJ.

It has been definitely settled that the Court of Appeals may not reverse upon the weight of the evidence if the trial court has once granted a motion for a new trial against the same party. Cleveland Ry. Co. v Trendel, etc., 101 Oh St, 316. Rolf v Heil, 113 Oh St, 113.

In both of these cases, however, the setting aside of the verdict would have been against the same party. In the present case, though the defendants in error secured the original verdict, they were dissatisfied with it and filed the motion for a new trial which was against the plaintiffs in error.

The present action of this court in ordering a conditional reversal is against the defendants in error, so that there will not be a granting of a new trial against the same party, more than once.

To construe the statute otherwise would be to permit an intolerable situation, for a verdict might be rendered in favor of a plaintiff for but nominai damages and be properly set aside as against the weight of the evidence, on motion of the plaintiff. Upon second trial another jury might do just as great an injury by returning a verdict for an enormous sum, and, unless the record showed such passion and prejudice as to warrant a reversal upon this ground, the defendant would be completely helpless, although he had never asked or received any relief upon the weight of the evidence, either by motion for a new trial or reversal on error.

We conclude that the statute means just what it says — that the same court shall not _ grant more than one new trial on the weight of the evidence against the same party, and that when it grants such a motion filed by a party it can not be said to have granted a motion against him.

The trial court, therefore, in the instant case could have granted the motion, was not prevented from doing so by the terms of §11577, GC, and committed error in refusing the motion of the plaintiff in error for a new trial, made for the first time in the entire proceeding.

We adhere to our former decision in the matter, and the application for a rehearing is denied.

HAMILTON and CUSHING, JJ, concur.  