
    Merrell, Dir. of Highways, v. Matt et al.
    (Decided February 15, 1932.)
    
      Mr. Gilbert Bettman, attorney general, and Mr. Raymond S. Powers, for plaintiff in error.
    
      Mr. JoTm A. Scanlon, for defendants in error.
   Ross, P. J.

This case is presented to this court on error from the probate court of Hamilton county, wherein a judgment in condemnation and appropriation of property was rendered in the sum of $6,975.

A motion was made in this court to dismiss the petition in error, on the ground that the statute of the state in the instant case permits no proceedings in error direct to this court from the probate court. It has been repeatedly held that this court has such jurisdiction from all courts of record in this state, by virtue of the provisions of Article IV, Section 6, of the Ohio Constitution.

Other grounds urged in support of the motion are found to be unsupported, and the motion is overruled.

An examination of the record discloses that upon the first trial of this cause the jury rendered the following verdict:

1. Compensation for land taken, including compensation for all improvements thereon' if you find that residence is entirely appropriated.................. $-

2. Compensation for land taken, including compensation for all improvements thereon if you find that residence is not entirely appropriated................ $ 980.00

3. Damages to the residue of the property: $2,995.00

$3,975.00

And in the last trial the verdict was as follows:

1. Compensation for land taken, and for all improvements thereon, if you find that improvements are entirely appropriated ............................. $--

2. Compensation for land taken, and for improvements thereon, if not entirely appropriated ....................... $5,130.00

3. Damages to residue:................. $1,845.00

Total............................. $6,975.00

A review of the record convinces the entire court that the last verdict is manifestly against the weight of the evidence, and that the former verdict is much more nearly correct than the latter.

In the absence of the acceptance of a remittitur to the extent of $1,975, the case will be remanded for a new trial. If such remittihtr is accepted, the judgment, modified to the extent of the remittitur, will be affirmed.

Judgment accordingly.

Hamilton and Cushing, JJ., concur. Hamilton and Cushing, JJ., concur.

(Decided February 29, 1932.)

Mr. Charles G. Williams, for plaintiff in error.

Mr. John A. Scanlon, for defendants in error.

On Application por Rehearing.

Ross, P. J.

Upon tbe first trial of this case in the probate court a verdict was rendered in favor of the defendants in error, George J. Matt and others, who filed a motion for a new trial. Their motion was granted upon the ground that the verdict was against the weight of the evidence.

Upon the second trial a verdict was again rendered in favor of the defendants in error for almost twice the original amount. Motion for a new trial was filed by the plaintiff in error. This motion, was overruled.

This court ordered a remittitur in lieu of a reversal of the judgment upon the weight of the evidence.

It is claimed that by virtue of the provisions of Section 11577, General Code, the judgment below may not be reversed upon the weight of the evidence because of the former action of the trial court in granting a motion for a new trial, at the request of and on the motion of the defendants in error.

Section 11577, General Code, provides as follows: “The same court shall not grant more than one new trial on the weight of the evidence against the same party in the same case, nor shall the same court grant more than one judgment of reversal on the weight of the evidence against the same party in the same case.”

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, 101 Ohio St., 316, 128 N. E., 136; Rolf v. Heil, 113 Ohio St., 113, 148 N. E., 398.

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 plaintiff 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 nominal 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 cannot be said to have granted a motion against him.

The trial court, therefore, in the instant case could have granted the motion, and was not prevented from doing so by the terms of Section 11577, General Code, 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.

Application denied.  