
    Samuel T. Heffner et al. v. Ellen and Hannah Scranton.
    An order setting aside a verdict and granting a new trial upon payment of costs, is not an order conditioned upon such payment. The order is absolute, and the stipulation with reference to costs may be enforced by execution, or as any other order may be.
    Error reserved in the District Court of Sandusky county.
    
      In September, 1868, plaintiffs in error filed their petition' in the Court of Common Pleas, Sandusky county, to recover the possession of real estate. October 28, 1868, defendants answered, setting up the statute of limitations. October 29, plaintiffs reply, denying the allegations of the answer. October term, 1868, judgment on submission, for plaintiffs.
    April 15,1869, defendants filed a petition to vacate this judgment, and for a new trial, which was granted, and the judgment set aside.
    June 28, 1869, amended answer filed, to which plaintiffs replied by a general denial, October 28,1869. Verdict and judgment for defendants, and plaintiffs demanded and were granted a second trial. February term, 1870, verdict for defendants, and motion for new trial by plaintiffs.
    Upon this motion, the following was the action of the court:
    This motion came on to be heard, and was argued by counsel, and the court being fully advised in the premises, did find that said verdict is against the weight of evidence; it is therefore considered' by the coui’t that said verdict be, and the same is hereby set aside, and a new tidal granted upon the plaintiffs paying the costs of the present term of this court, in this case, within twenty days' from the rising of this court.
    May 30,1870, defendants filed their motion for judgment on the verdict:
    1. Because the order of the court was not complied with in paying the costs of said suit of February term, within the time limited for such payment.
    2. Plaintiffs did not pay full amount of said costs, as required by law.
    3. Because plaintiffs did not pay said costs, or any of them, within twenty days from the rising of this court. .
    At the May term, 1870, this motion came on to be heard —affidavits were read, and the following is the entry :
    “ This day come the parties by their attorneys, and thereupon this cause came on to be heard upon the motion of said defendants, and was argued by counsel, and the court, being fully advised in the premises, does sustain said motion. It is therefore considered that the verdict rendered in this case at the February term, 1870, of this court, stand and remain the same as there rendered, and received and entered on the record of this court, and that the defendants go hence without day, and recover of the plaintiffs their costs, taxed to $--.
    To which ruling, order, and judgment the plaintiffs then and there excepted, and prayed the court to sign and seal their bill of exceptions, which is done accordingly.”
    The bill of exceptions sets forth:
    1st. Motion of the plaintiffs for the new trial at the February term, 1870, the grounds of which are :
    
      a. The verdict is not sustained by the evidence.
    
      b. The verdict is against the weight of the evidence.
    c. The court erred in its charge to the jury.
    
      d. The court refused to charge the jury as requested by the plaintiffs.
    
      e. Misconduct on the part of the. prevailing party. (Defendants.)
    /. Newly discovered evidence, etc.
    2d. Hearing of the motion which was on April 2d, 1870, on which day court adjourned said February term, without day, and the finding thereon, which is set forth in the above entry.
    A petition in error to the ruling below was filed in the District Court, which was reserved to the Supreme Court. •
    
      John M. Lemmon, for plaintiff1 in error:
    The payment of costs is not condition precedent to a new trial. Johnson v. Taylor, 3 Sm. & M. 92; 34 Ala. 71; Dana v. Gill, 5 J. J. Marsh. 242; Nash Pl. and Pr. (old ed.) 672; Hilliard on New Trials, 53; 1 Gra. & Wat. New Trials, 602; Anderson v. R. W. & O. R. R. Co., 54 N. Y. 345; Howell v. Mills, 53 N. Y. 322.
    
      H. Goodwin and H. W. Winslow, for defendants in error.
   Wright, J.

At the February term the court, upon the motion for a new trial, granted, the same “ upon the plaintiffs paying the costs of the present term, within twenty days from .the rising of this court.” The February term then adjourned, and at the subsequent May term the court entered judgment that the verdict stand, and that defendants go hence, etc. Has a court, therefore, the right, after granting an order setting aside a verdict upon payment of costs, to enter judgment upon the same verdict because the costs were not paid ? In other words, can the court make the payment of costs a condition precedent to setting aside the verdict, when the court has already found, and the record shows the existence of facts, requiring that such verdict should be set aside ?

That class of orders which may be said to lie purely within the discretion of the court, may be coupled with, and made dependent upon, the performance of conditions, as in the familiar instances of granting continuances, or the amendment of pleadings. Here it is undoubtedly the-case that payment of costs may be made a condition precedent. When the court has the power to allow or to refuse, it may allow upon terms which it sees fit to impose.

But in these cases, where the duty of the court is definitely pointed out, we apprehend that duty must bé exactly performed.

For a court to say that it will discharge such duty only upon terms, assumes the right of refusal to act if such-terms are not complied with. This can not be correct action in a case where the law has pointed out what is the proper and only course to pursue.

In regard to what is the duty of a court, with reference to granting or refusing a new trial: at common law the application was -to the discretion of the court, and for that reason error could not be assigned to the decision. Beatty v. Hatcher, 18 Ohio St. 120; 2 Gra. & Wat. New Trials, 46.

By the code, section 297, when certain things are found, the law says a new trial “ shall ” be granted.

Code, section 297, provides : The verdict . . . shall be vacated and a new trial granted on the application of party aggrieved . . . for following causes.”

The sixth subdivision of this head requires that a new trial shall be granted “ when the verdict ... is not sustained by sufficient evidence.”

The finding of the court puts upon record, that the “ said verdict is against the evidence.” With this fact thus fixed it became the duty of the court to grant a new trial. Even at common law, where it was matter of discretion, it was a legal discretion, an abuse of which was ground of error. As is well said in Dean v. King, 22 Ohio St. 134, “ Motions for new trial, upon the ground that the verdict is against the weight of evidence, are addressed to the discretion of the court, and if granted, the judgment will not be disturbed unless the case is so strong as to show an abuse of the discretion.”

When, therefore, the court had found that the verdict was against evidence, the code providing that in such case a new trial shall be granted, it certainly would have been an abuse of discretion not to do so.

Whether, therefore, it was the strict legal duty of the court to grant a new trial, or whether it was within its discretion to do so or refuse, in either case, here, and under these circumstances, it had but one thing to do, and a refusal to set aside the verdict would have been error.

The duty of the court then being plain, to set aside the verdict and grant a new trial, did it perform that duty by attaching a condition which it construes so as to render its whole action nugatory ? Does the granting of a new trial depend upon the action of the court, or upon the payment of costs by somebody out of court?

The action of the court, here, was construed by it to be conditional. If the costs were paid, the verdict was set aside; if not paid, judgment was to be, and was entered on the verdict! The order that the verdict stand and judgment upon it, because tbe costs had not been paid, was erroneous.

We do not mean to hold that a new trial may not be granted, with a stipulation for payment of costs. Rut such stipulation is not in the nature of a condition precedent. Whether costs are paid or not paid, the order stands; the new trial is granted; the remaining portion of tbe order is to be enforced, as orders or judgments are usually enforced ; and an execution for costs may be had, which is the proper remedy. Even if such execution were fruitless, it would be an unwise exercise of justice to deprive a man of his legal right to a new trial because he was unable to pay for it. This view is sustained by the following authorities—Johnson v. Taylor, 3 Sm. & M. 92; Dana v. Gill, 5 J. J. Marsh. 242; Ex parte Bearns, 34 Ala. 71; Anderson v. R. R. Co., 54 N. Y. 335-343; Robinson v. Kious, 4 O. S. 596.

Judgment of Court of Common Feas reversed,, and cause remanded.

Scott, Chief Judge, Johnson, and Ashburn, JJ., concurred.

Day, J., not sitting.  