
    The Dayton & Union Railroad Company v. The Dayton & Muncie Traction Company.
    
      Appropriation proceedings — Section 6432, Revised Statutes — Motion for new trial to he made, when — Section 5305, Revised Statutes — Time for filing Mil of exceptions where motion for , new trial overruled — Court procedure.
    
    1. Although it may not be necessary to file a motion for a new trial at the time of the hearing of the preliminary questions in an appropriation proceeding, under section 6420, Revised Statutes, in order to bring upon the record errors occurring upon such hearing; yet if such errors come within any of the causes for a new trial as defined in section 5305, Revised Statutes, the aggrieved party may include the same in a motion for a new trial to be filed within ten days after the verdict is rendered in such appropriation proceedings, as provided in section 6432, Revised Statutes. Weaver v. Columbus, Shawnee & Hocking Talley Railway Co., 55 Ohio St., 491, approved and followed.
    2. If such motion for a new trial should be overruled, the time for filing a hill of exceptions must he reckoned from the date of the overruling of the motion for a new trial.
    (No. 8839
    Decided May 2, 1904.)
    Error, to the Circuit Court of Darke county.
    On the thirteenth day of July, 1903, the defendant in error filed a petition in the probate court of Darke county to appropriate the right to cross the tracks and right of way of the plaintiff in error with the track of the defendant in error, and the right to maintain such crossing; and the time for the hearing of the preliminary matters in the case was fixed at July 20, 1903, at which time it was continued by agreement to July 23, 1903. On July 23, 1903, the plaintiff in error filed an answer to the petition. On the same day the preliminary hearing was begun and it was concluded, and the finding of the probate court thereon was made, on August 10,1903. To the findings, orders and judgment of the probate court made at that time the plaintiff in error excepted. The case was tried by the court and jury on August 25, 1903, and on that day a verdict was rendered for the plaintiff in error in the sum of $25.00. On September 3, 1903, the plaintiff in error filed a motion for new trial, which is as follows:
    The defendant, The Dayton & Union Railroad Company, moves the court to set aside its findings and judgment made and entered on the hearing and trial heretofore had on the preliminary and jurisdictional questions in this case, and to set aside the verdict of the jury heretofore rendered, and to grant a new trial herein for the reasons following:
    
      ' First: Because the said findings and judgment rendered and entered on said preliminary hearing and trial on the said jurisdictional of questions is against the weight of the evidence, and is not supported by the evidence.
    Second: Because the said findings and judgment rendered on said preliminary hearing and trial is contrary to and against the law of the case.
    Third: Because the said findings and judgment rendered on the hearing and trial on said jurisdictional questions should have been in favor of this defendant instead of in favor of the plaintiff.
    Fourth: Because the court admitted evidence on the said hearing and trial against the objection of this defendant to which admission of the evidence this defendant at the time excepted.
    Fifth: Because the court refused to admit evidence' offered by this defendant on said hearing and trial to which refusal this defendant at the time ■ excepted.
    Sixth: Because of newly discovered evidence material for this defendant which this defendant by the exercise of reasonable diligence could not have discovered and produced on the said hearing and trial.
    Seventh: Because the said verdict is not supported by sufficient evidence.
    . Eighth: Because the said verdict is contrary to the evidence and the law of the case.
    This motion was heard and overruled on September 12, 1903; and on the ninth day of October, 1903, the plaintiff in error filed its bill of exceptions. A petition in error having been filed in the court of common pleas, that court affirmed the judgment of the probate court; and on the hearing of a petition in error in the circuit court, that court found and adjudged “that no motion for a new trial was filed nor bill of exceptions allowed, signed and filed by-said plaintiff in error in the probate court of Darke county, Ohio, within the proper time from and after the decision of said probate court upon the hearing of the preliminary and jurisdictional questions had in said appropriation proceedings in said court and the court do therefore ignore and refuse to consider all the evidence contained in said bill of exceptions so taken at the hearing of said preliminary and jurisdictional questions.”
    For this and other alleged errors the plaintiff in error seeks the reversal of the judgments against it in the courts below.
    
      Mr. R. M. Nevin; Mr. John C. Clark and Mr. C. B. Heiserman, attorneys for plaintiff in error,
    cited and commented upon the following authorities:
    
      State ex rel. v. The Judges, 69 Ohio St., 372; Railway Co. v. Telegraph Co., 68 Ohio St., 306; In re George, 3 Circ. Dec., 104; 5 C. C. R., 207, 215; Railway v. Railway, 77 Pa. St., 173; Railway v. Railway, 116 Ind., 582; Railroad v. Railroad, 72 Mich., 208; In re St. Paul, etc., 37 Minn., 164; Railway Co. v. City, 4 Circ. Dec., 602; 7 C. C. R., 293; National Docks, etc. v. United Companies, 53 N. J. Law, 223; Railway v. City, 139 Ind., 490; Minnear v. Holloway, 56 Ohio St., 148.
    
      Messrs. Anderson, Bowman & Anderson, attorneys for defendant in error,
    cited and commented upon the following authorities:
    
      Ide v. Churchill, 14 Ohio St., 372; Westfall v. Dungan, 14 Ohio St., 276; Minnear v. Holloway, 56 Ohio St., 151; Everett v. Sumner, 32 Ohio St., 562; Spangler v. Broivn, 26 Ohio St., 389; Turner v. Turner, 17 Ohio St., 449; Randall v. Turner, 17 Ohio St., 262; Railway Co. v. Railway Co., 3 Circ. Dec., 493; 6 C. C. R., 383; Railway Co. v. Railway Co., 3 Circ. Dec., 566; 6 C. C. R., 535; Railway Co. v. Railway Co., 26 O. C. C., 1; 4 C. C. R., 329; Railroad Co. v. Cable Co., 68 Ohio St., 306; Cable Co. v. Railroad Co., 11 Dec., 52; 8 N. P., 121; Railroad Co. v. Cable Co., 12 Circ. Dec., 522; 22 C. C. R., 555; State v. The Judges, 69 Ohio St., 372; Railway Co. v. Railroad Co., 48 O. L. B., 245; Railroad Co. v. Lohe, Admr., 68 Ohio St., 101; Bridge Co. v. Iron Co., 59 Ohio St., 179; State v. Traction Co.’s, 64 Ohio St., 272; secs. 5305, 5307, 6411 and 6420, Rev. Stat.; act of May 10, 1902 (95 O. L., 530).
   Davis, C. J.,

The only assignment of error which we have found it necessary to consider is that concerning the refusal of the circuit court to consider that part of the bill of exceptions which contains the testimony taken on the hearing of the preliminary and jurisdictional questions.

We have recently held, in Railroad Co. v. Tod et al., ante, 156, that the findings of the probate judge on the hearing of the preliminary questions in an appropriation proceeding are reviewable on error; and that the time within which a petition in error may be filed must be computed from the final judgment of the probate court, either dismissing the petition or confirming the verdict of the jury. This is upon the theory that the hearing of the preliminary, or what are often called the jurisdictional, questions is a constituent part of the case and not a separate or independent proceeding. Hence it was held in that case that it is not necessary to make a motion for a new trial of the preliminary questions, that is, separately from a new trial of the whole case; and it was also held in that connection and upon that theory that if no motion for a new trial is filed in the case, the time within which a bill of exceptions on such hearing should be taken should he computed from the day on which said questions are determined; but if a motion for a new trial is filed the time should be computed from the time such motion is overruled. This is strictly in accord with section 5301, Bevised Statutes (96 O. L., 16), as amended and in force at the time of the trial of this appropriation proceeding.

A new trial, if granted, goes to the whole case. If must be retried from the beginning and upon all the issues of fact which are involved in the case. This results from the unity of a proceeding in appropriation. It may be that a sharp conflict of testimony has arisen on the preliminary hearing and the defeated party may think that the finding of the probate judge is not sustained by the weight of the evidence or that he has not rightly applied the law to the evidence. He need not make a motion for a new trial, then and there, of that part of the case; but he may, and if he desires to do so, properly should, bring the evidence upon the record and all the questions in regard to it, by a motion for a new trial within ten days after the verdict. Counsel are wrong in their contention, at this point, that the motion for a new trial is specifically limited by section 6432, Bevised Statutes, to a re-examination of the issues of fact determined by the verdict. This section limits only the time within which such motion may be filed. Section 6436 provides that “a new trial shall be granted for cause only” and that when it is granted it ‘ ‘ shall take place in the same court where the first trial was had, and shall he conducted in accordance with the provisions of this chapter for the first trial, so far as the same are applicable.” We construe the word “trial” here as we construed the same word in section 6438, in State v. Judges, 69 Ohio St., 372, that it means a rehearing of the case from the beginning.

It must also be remembered that the office of a motion for a new trial is not confined to a review of a finding on the evidence. It may not be necessary to make a motion for a new trial in order to obtain a review of errors of law occurring at the trial or in a decision by the court, where the sufficiency or weight of the evidence is not involved; yet the party aggrieved is expressly authorized by section 5305, Revised Statutes, to again bring those matters to the attention and review of the trial court by a motion for a new trial. This court has held after careful consideration that if such a motion for a new trial should be overruled, the time for filing a bill of exceptions should be computed from the day that the motion for a new trial was overruled, and not from the date at which the error so complained of was committed. Weaver v. Columbus, Shawnee & Hocking Valley Railway Co., 55 Ohio St., 491. The following remarks in the opinion in that case, by Bradbury, J., are so pertinent to this case that we repeat them here.

“It may be true that some of the rulings of the trial court do not require a motion for new trial to bring them into the record. If, as to them, none is made, the period within which a bill of exceptions must be filed begins to run from the ruling complained of. It is to this condition of those questions that this limitation applies. Where, however, the party excepting chooses to avail himself of the right granted by sections 5305, 5307 and 5308, Revised Statutes, to include the ground of error in a motion for a new trial, he re-submits the question, and the error should be regarded as arising out of the action of the court in overruling the motion for a new trial. This construction of the sections of the statute is necessary, or the party excepting in many instances would be debarred from the exercise of the valuable privilege by the provisions of sections 5305, 5307 and 5308, Revised Statutes, of a rehearing of the question in the trial court under circumstances more favorable to its deliberate consideration than attended the first investigation. This is the prime object to be obtained by a motion for new trial and we think this object should not be defeated by placing a strict construction on the section of the statute that relates primarily to the time and manner of taking bills of exceptions.”

The judgment of the circuit court will therefore be vacated and the cause remanded to the circuit court with instructions to consider all of the bill of exceptions.

Remanded.

Shauck, Price and Summers, JJ., concur.  