94 Ohio St. 1 | Ohio | 1916
The defendants in error, by a cross-petition in error filed herein, question the validity of the action of the court of appeals altering the date of its journal entry, claiming that the court’s action in that regard was without jurisdiction, and complain that but for such alteration of the entry the record would disclose that this court has not acquired jurisdiction of the case.
The rule has been so frequently stated and so universally recognized that judgments are under the control of the court which pronounces them, during the term at which they are rendered, that nothing further than a restatement of the rule and application thereof to this case seems necessary. It appearing that the judgment of the court of appeals reversing the common pleas was entered as of March 26, 1915, the date the decision was announced and opinion filed, whereas, by reason of delay occasioned by disagreement of counsel as to what the journal entry should contain, it was not
The defendants in error, being aggrieved by the order of the county commissioners that the ditch improvement petitioned for be proceeded with, appealed to the probate court under favor of Section 6469, General Code, upon the questions whether such ditch will be conducive to the public health, convenience or welfare, and whether the route thereof is practicable. In accordance with the provisions of Section 6475, General Code, the premises along the route of the ditch were examined by, and evidence was submitted to, the jury upon the matters given it in charge by virtue of such appeal proceeding. At the close of the trial and before the jury retired for deliberation, the defendants in error submitted 30 interrogatories and requested the court to require answers thereto by the jury, which was done and answers accordingly returned. The verdict of the jury was a finding that the ditch will be conducive to the public health, convenience or welfare, and that the route of said ditch is practicable. It was contended by defendants in error, both in the trial court and in the reviewing court, that the special findings of fact were inconsistent with the conclusion of the jury that the ditch will be conducive to the public health, convenience or welfare, and, therefore, in that regard controlling the verdict. No contention is made, however, that the answer to any interrogatory is inconsistent with the finding that the route
It is now contended by the plaintiffs in error that the verdict to be rendered by the jury in such proceeding is in no sense a general verdict, but is itself merely a finding of an ultimate fact from the conditions disclosed by a view of the premises affected by the proposed improvement and the evidence adduced, and that, therefore, the submission of these several interrogatories which call for a finding of particular facts was unauthorized. It appears, however, that the plaintiffs in error offered no objection whatever to such interrogatories, nor to any of them, nor to the direction of the court that the jury answer them; neither does it appear that plaintiffs in error objected to the consideration of such answers in either of the courts below. An objection to their consideration is made for the first time in this court, and it is now urged that such interrogatories were improperly submitted and should not have been considered by the court of appeals. However interesting and attractive the question thus presented may be, we are of opinion that discussion and decision thereof
Necessarily assuming then, for the purposes of this case, that the verdict is a general verdict, the question arises whether, under the provisions of Section 11464, General Code, the special finding of facts is so inconsistent with such verdict as to control and authorize the court to disregard the verdict and render a judgment for the adverse party upon such special finding. The rule to be applied in reaching an answer to such, question is very tersely stated in the case of Davis v. Turner, 69 Ohio St., 101, as follows: “To be inconsistent with the general verdict as contemplated by Section 5202, Revised Statutes [11464, General Code], it must appear that the special findings are irreconcilable, in a legal sense, with the general verdict; and to justify the court in setting aside or disregarding the general verdict on the ground that it is inconsistent with such special findings, the conflict must be clear and irreconcilable.”
It seems quite apparent that when the court of appeals came to apply this test to the special find
In the case of Gale v. Priddy, 66 Ohio St., 400, the court makes the observation that our statute upon this subject is identical with that of the state of Indiana, having been adopted from that state, and, hence, that the settled construction there is presumed also to have been adopted here.
The cases are quite numerous in which the supreme court of Indiana has construed the statutory provision here in question, and the holding has been uniform that, in considering whether facts specially found are irreconcilable with the general verdict, no inquiry can be made into the evidence adduced on the trial. The decisions covering such question particularly in point are Stevens v. The City of Logansport, 76 Ind., 498, and Shaffer v. Ryan, 84 Ind., 140. From the opinion in the former case we quote the following statement, at page 501, which we find particularly applicable to this case: “The question to be decided is not whether, in the light of the evidence adduced, the general verdict is inconsistent with the facts found; the remedy in case of such an inconsistency
Unquestionably such rule should be applied in a case of the character of the one now under consideration, which is a special proceeding provided by statute whereby the particular questions upon which appeal is taken from the order of the county commissioners may be submitted to and determined by a jury, not alone upon the evidence adduced in court, but from a consideration of the physical conditions along the line of the proposed improvement, disclosed by an actual view of the premises, authorized by the statute governing such proceeding. Indeed, the information acquired by such view may be most influential, if not absolutely controlling, in the consideration of the special matters submitted to the jury.
Our next question is whether the special findings alone are so inconsistent with the general verdict as to be irreconcilable therewith. We deem it unnecessary to set out in detail these several interrogatories and answers. It is sufficient to state' that in answer to certain questions the jury found that the public highway crossed by said improvement would be afforded better drainage thereby; that within four rods of the proposed ditch there is a swale on each of two farms which would be
The finding of the jury from the evidence adduced and their view of the premises that the proposed improvement would drain swales and stag
Although in response to other interrogatories the jury returned answers which tend to show a lack of necessity for the proposed ditch improvement and eliminate from consideration certain facts which, had they been found otherwise, could also have been urged as' supporting the claim that the ditch would be conducive to the public health, convenience or welfare, yet' it is quite apparent that facts were found which are in entire accord with the verdict of the jury, and when taken together the special findings of fact are not irreconcilable with and repugnant to, but on the contrary fully support, the general verdict.
It follows that the court of appeals was in error in entering a final judgment for the plaintiffs in error in that court. Such judgment is therefore reversed and that of the common pleas and probate courts affirmed.
Judgment reversed.