
    No. 12967.
    The People's Railway Co. v. The Dayton Street Railway Co.
    Decided March 18, 1913.
    Error to Circuit" Court of.Montgomery county.
    
      Messrs. McMahon & McMahon, for plaintiff in error.
    
      Messrs. Murphy, Eliif '& Emanuel, for defendant in error.
   Judgment reversed.

Ground stated in journal entry.

It is ordered and adjudged by this court, that the judgment of the said court be, and the same hereby is, reversed; and this court finds, on the agreed statement of facts between the parties, that the said plaintiff in error is entitled to recover from defendant in error on account of the construction of the bridge referred to in said agreed statement of facts; and the court finds that the said plaintiff in ■ error, having paid the sum of $40,000 toward the construction of such bridge, and it not being shown in the record whether, and if so how much, depreciation occurred in said bridge, between its construction and the commencement of this proceeding in the courts below, it is ordered and adjudged that this cause be remanded to the court of common pleas, with instructions to proceed according to law and fix the value of said bridge at the beginning of this proceeding and to enter judgment in favor of plaintiff in error against the defendant in error for one-half of such sum as bears the same proportion to the value of said bridge at the beginning of this proceeding that $40,000 bears to the original cost of said bridge, but said judgment for said one-half shall, in no event, exceed the sum of $20,000, with interest from the date of the beginning of the suit, but the judgment shall include interest on such one-half from the date of the beginning of the suit.

Si-iauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.

On December 19, 1913, the court made the following entry on its journal.—Reporter.

This day this cause came on to be heard on the motion of the plaintiff in error to modify the judgment rendered by this court herein on March 18, 1913, and of the defendant in error to modify said judgment, for the reasons stated in said motions severally. The same were argued by counsel and submitted to the court. On consideration whereof, it is ordered and adjudged by this court that the motion of the plaintiff in error be, and the same is hereby, sustained; and it is heréby ordered that the judgment heretofore rendered in this cause in this court be modified so as tó read as follows: It is ordered and adjudged by this court that the judgment of the circuit court be, and the same is hereby, reversed for the reason that this court finds that upon the agreed statement of facts contained in the record plaintiff in error is entitled tó recover from the defendant in error on account of thé bridge referred to in said statement of facts. And coming now to render the judgment which said circuit court should have rendered, it is hereby ordered that the said cause be remanded to the court of common pleas with instructions to enter, judgment in favor of the plaintiff in error against the defendant in error for one-half of the sum of $40,000 paid by the plaintiff in error towards the construction of the bridge referred to in said agreed statement of facts, to-wit: $20,000, in addition to the sum of $5,034.55, the sum for which judgment was actually entered, thus making the amount of the judgment now to be entered by said court of common pleas in favor of the plaintiff in error against the defendant in error the sum of $25,034-.55 with interest from the date of the original judgment in probate court.

It is further ordered and adjudged' that the motion of the defendant in error and its application for a rehearing be, and the same are hereby overruled.

It is further ordered and adjudged that the defendant in error pay the costs herein and in the courts below.

On March 3, 1914, the court made the following entry on its journal.—Reporter.

This, cause came on to be heard on the motion of the defendant in error filed in this court January 10, 1914, to modify the judgment of the court rendered on December 19, 1913. On consideration whereof, it is ordered and adjudged that the sum deposited by the defendant in error with the probate judge of Montgomery county June 21, 1909, be paid to the plaintiff in error and credited on the judgment ordered to be rendered by this court.

And it is further ordered that no interest be calculated on the sum of $5,034.55, part of the judgment heretofore ordered to be rendered in said cause, which sum of $5,034.55 was paid into said court on June 21, 1909.  