
    McLaughlin et al. v. The Wheeling and Lake Erie Railway Company.
    
      Petition in error to reverse Circuit Court — Judgment of Circuit Court regarded as involving weight of evidence, when — Conclusiveness of the record — Court practice.
    
    1. When a petition in error is filed in this Court for the reversal of a judgment of the Circuit Court, and it appears from the accompanying record that the Circuit Court reversed the judgment of the Court of Common Pleas for error in overruling a motion for a new trial, the judgment of the Circuit Court will be regarded as involving the weight of the evidence, if that is one of the grounds stated in the motion for a new trial, even though more particular grounds of reversal may be stated in the entry of the judgment of the Circuit Court.
    2. In such case the record of the Circuit Court must be taken as conclusive upon the subject of the grounds of reversal.
    (Decided November 28, 1899.)
    Error to the Circuit Court of Huron county.
    On motion to affirm the judgment of the circuit court.
    Plaintiff's brought a civil action in the court of common pleas against defendant, and upon issues of fact joined the cause was tried to a jury. In the progress of the trial numerous exceptions were taken by the company to the rulings of the court as to the competency of evidence, to the refusal of the court to give to the jury the instructions which it requested, and to portions of the charge given. After a verdict for the plaintiffs the company moved for a new trial upon numerous grounds, including the following:
    Fourth: — That the court erred in not charging the jury as requested by said defendant, to which refusal to so charge the said defendant then and there excepted;
    
      Fifth: — That the court erred in its charge to the jury in each and every the particulars and parts thereof, to which the said, defendant then and there excepted;
    Sixth: — That the amount of damages awarded said plaintiffs is excessive and appears to have been given under the influence of passion and prejudice;
    Seventh: — That the verdict is not sustained by sufficient evidence;
    Eighth: — -That the verdict is against and contrary to the weight of the evidence;
    Ninth: — That the verdict is contrary to law;
    Tenth: — That said verdict should have been in favor of said defendant and against said plaintiffs;
    Eleventh: — For errors of law occurring at the trial and then there duly excepted to by said defendant;
    The motion was overruled and a judgment was entered upon the verdict, to which the company excepted. The company thereupon filed its petition in error in the circuit court, alleging error in all of the matters alleged in the motion for a new trial. Upon the hearing the circuit court reversed the judgment of the court of common pleas for the following reasons, as appears from its journal entry:
    “The court find that there is error apparent upon the record in the proceedings of said court, to the prejudice of the plaintiff in error, in this, to-wit: that the said court of common pleas refused to the plaintiff here a new trial on its motion therefor.
    “Said court also finds that said court of common pleas also erred in admitting testimony that was objected to by the plaintiff in error, tending to show the depreciation of the value of the defendant in error’s property.
    
      “The court also finds that the court of common pleas erred in its charge to the jury, and in its refusal to charge the jury as requested by the plaintiff in error, and especially in refusing to give requests numbers 1-4-6 and 7.”
    Plaintiffs having filed a petition in error here for the reversal of the judgment of the circuit court, the company moves for the affirmance of that judgment for the reason that one ground of reversal by the circuit court is that the judgment of the common pleas court was not sustained by the evidence.
    
      Andrews Brothers; G. T. Stewart and A. E. Rowley, for plaintiffs in error.
    
      Swayne, Hayes & Tyler, and Jesse and Willis Vickery, for defendant in error.
   Shatjgk, J.

The motion is made under favor of the following rule of this court: “In all cases in which the judgment of the circuit court reversing the judgment of the court of common pleas, is wholly or partly on the ground that such judgment is not sustained by sufficient evidence, and a petition in error is filed in this court upon the record of the circuit court, a motion to affirm such judgment forthwith will be entertained.” The rule regards the provisions of Section 6709 of the Revised Statutes that “in every case where a judgment or order is reversed and remanded for a new trial or hearing, the circuit court shall in its mandate to the court below state the error or errors found in the record upon which the judgment is founded;” and the provision of section 6710 of the Revised Statutes that “the supreme court shall not in any cause or proceeding, except when its jurisdiction is original, be required to determine as to the weight of the evidence.”

It is conceived that, notwithstanding the provision last quoted, cases may arise involving public considerations of so grave a character that it would be the duty of this court to consider and determine as to the weight of the evidence. Because the jurisdiction referred to remains in this court, motions to dismiss petitions in error for the reason that the judgments of reversal rendered by the circuit courts were wholly or partly upon the ground that the judgments of the common pleas court were contrary to the weight of the evidence, have been uniformly overruled. The rule under consideration was framed to meet this condition and to prevent the unnecessary accumulation here of cases in which the judgments of the circuit court must be affirmed because supported by a consideration which this court will not review, it being understood that upon a motion to affirm it will be determined whether this court should consider the weight of the evidence. The record before us presents no reason why that subject should be considered here. The rule assumes that the circuit court will in all cases perform the duty defined in section 6709 by passing upon all errors assigned and stating the grounds’"of its judgment reversing that of the court of common pleas. No dire consequences are to be apprehended from this rule. The assumption which it makes is justified not only by the terms of the statute but by our knowledge of the practice in the circuit court. If it be true that the weight of the evidence was not' a ground of reversal in this case, it was only necessary that in the preparation of the judgment entry counsel should have used apt language to exclude that consideration from the grounds of reversal, or, if necessary, apply to the circuit court for a more definite statement of such ground. Reference to its opinion cannot be made to correct a supposed inadvertence in the entry of its judgment.

The difficulty encountered by the plaintiffs is not met by the suggestion of a diminution of the record. The entire record is here. The claim of counsel is, that from the record that appears to have been adjudged by the circuit court which was not in fact adjudged. Upon a question of that character the record, even if inadvertently made, must be accepted as conclusive.

Motion to affirm sustained.  