1 Ohio Law Rep. 291 | Ohio | 1903
The only question presented by the record in this case which we have thought it necessary at this time to consider or determine, is that of the proper interpretation, meaning and effect to be given to Section 5306, Revised Statutes, which section 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.” This statute is of comparatively recent date and so far as we are advised has not heretofore received judicial interpretation in this state. Certainly not by this court. The office, meaning and intent of this statute are involved, and become material in this case, by reason of the action and judgment of the Circuit Court' of Pickaway County, from which court this proceeding in error is prosecuted. As appears from the statement of facts in the record in this case, the Circuit Court of Franklin County, at the January Term thereof, 1901, reversed a judgment of the court of common pleas and granted a new trial in this case, assigning as one of the grounds for such reversal, “that the verdict of the jury was manifestly against the weight of the evidence.” Thereafter upon a change of venue the cause was removed for trial to Pickaway county and was there tried in the court of -common pleas of that county. On that trial the plaintiff, who is defendant in error here, was again, successful, obtaining a verdict against the street railway company in that court for $9,100. The street railway company thereupon filed its motion for new trial, alleging among other grounds therefor, that: “Said verdict was contrary to the weight of the evidence, and was not sustained by sufficient evidence.” This motion was overruled and the street railway company prosecuted error to the Circuit Court of Pickaway County, alleging as one ground of error
“The court, upon consideration of this action, find, that it appears in the record and proceedings herein, that at the January Term, A. D. 1901, of the Circuit Court of Franklin County, Ohio, upon a former hearing of this action between the same parties, said circuit court reversed a former judgment entered in this cause between the same parties, and granted a new trial on the weight of the evidence; and that by reason thereof this court is precluded from considering this cause on the weight of the evidence and from granting a'new trial on that ground; and for that reason this court did not and does not consider, review or pass upon the error assigned in the petition in error, to-wit: That said common pleas court erred in overruling the motion for a new trial of this plaintiff in error on the ground that the verdict was against the weight of the evidence, and this court rules that it should not consider or pass upon the question of the weight of the evidence, and does not pass upon the same.”
Whether this action of the circuit court was erroneous is the question here for determination.
In the consideration of this case we shall assume, but without deciding or expressing an opinion upon that question, that for the purpose of reviewing this case on error, the Circuit Court of Pickaway County and the Circuit Count of Franklin County, were and are within the purview and meaning of Section 5306 the same court. . Thus leaving for determination in this case the naked question, whether by the prohibitive provisions of this section, the Circuit Court of Pickawav;. County was precluded from considering this case on the weight of the evidence, for the reason that the Circuit Court of Franklin County had previously reversed one judgment in the same case, on the ground that the verdict of the jury was not sustained by sufficient evidence. The answer to this question must be found in. the proper construction and interpretation of Section 5306, Revised Statutes.
On the adoption of Section 5306 no change or amendment whatever was made in Section 6709, which latter section confers upon circuit courts jurisdiction' to review and reverse any final judgment of the court of common pleas, and said Section 6709 is still in full force and effect, except in so far, if at all, as the same is rendered inoperative, or is by implication repealed, by the provisions of Section 5306. But repeals by implication are not favored, and this court has said in the case of Dodge v. Gridley, 10 Ohio, 178: “Where two affirmative statutes exist, one is not to be construed to repeal the other by implication, unless they can be reconciled by no mode of interpretation.”
Apptying these rules, it Can hardly be supposed, when we consider its position in the statute and the nature and character of its provisions that Section 5306 was thus intended to conflict with, or in any measure repeal Section 6709, or to vary, limit or restrict the jurisdiction and authority conferred by said last named section upon circuit courts as courts of error and review.
Again, the language employed in Section 5306 would seem of itself t'o -be such as to limit and restrict the application'of the provisions of that section to trial courts only. That which is forbidden by the language of the section is the granting of more than one new trial on the weight of the evidence against the same party in the same case. A new trial is defined by Section 5305, Revised Statutes, to be: “A re-examination, in the same court, of an issue of fact,” etc. But a circuit court' in a case pending in that court
The practice act of the state of Illinois which contains a provision very similar to that contained in Section 5306, Revised Statutes of Ohio, has received construction by both the Supreme and appellate courts of that state.
The fifty-seventh section of that act provides that: “No more than two new trials upon the same grounds shall be granted to the same party in the same cause.” In the case of Railway Co. v. Patterson, this section was before the Supreme Court of that state for review at the September Term, 1879. At a former term that court had reversed a judgment of the lower court in the same case, on the ground that the verdict of the jury was not sustained by sufficient evidence. It was urged there, as it was urged in the circuit court by counsel for defendant in error in this case, that the statute prohibited the court from again reversing, as by so doing it would be t'o grant more than two new trials to the same party in the same case. Chief Justice Walker, in the opinion in that case, said: “The revision of 1874 has changed the section, previously in force, in the statutes. This section formerly in force in general terms prohibited the granting of more than two new trials to the same party in the same case. Under that section the question was before us in Wolbrecht v. Baumgarten, 26 Ill., 291; Silsbey v. Lucas, 53 Ia., 479, and Stanberry v. Moore, 56 Ill., 472. And in the last of these eases it Was held that the statute does not operate to restrict this court in reversing judgments in the same case any number of times. And a third verdict was set aside in that ease, because it was not sustained by the evidence,, thus virtually holding that section had m> application to the practice in this
Thereafter, in 1896, this section was before the appellate court, second district, of that state for review, in the case of Railway Co. v. Alsdurf, Admr., etc. Justice Crabtree, announcing the opinion of the court' in that case, among other things said: "This case has been before this court on two former occasions, and twice the judgment of the court below has been reversed. * * * On the last occasion when this case was before us we reversed the judgment solely upon the ground that the verdict was against the evidence, and that is the principal reason now urged for a third reversal. * * * We are not unmindful that three juries have found the issues for defendant in error upon substantially the same evidence, and it' is insisted by his counsel that a judgment will never be of tener than twice reversed, because the. verdict is against the evidence. We do not understand that there is any such rule of law. In the case of Stanberry v. Moore, 56 Ill., 472, it was held that the statute which provides that no more than two new trials shall be granted in the same case, has special application to suits in the circuit court, and does not operate to restrict the power of the appellate court in reversing judgments in the same case any number of times. And in that case a third verdict was set aside by the Supreme Court because it was not supported by the evidence.
“In the case of Railway Co. v. Patterson, 93 Ill., 290, the same ruling was followed, and judgment' based upon the verdict of a third jury was reversed, and the cause was not remanded.
“In a case where the verdict is clearly against the weight of the evidence, it is not only our right, but our duty, to set it aside and reverse the judgment'.” Railway Co. v. Alsdurf, 68 Ill. App., 150.
It was doubtless the design and purpose of the Legislature by the enactment of Section 5306, Revised Statutes, to thereby restrain the unlimited discretion of trial courts over verdicts of juries, whose peculiar province it is under our system of jurisprudence, to determine the facts. But in the absence of any such expressed intention, or irresistible implication arising from the language em»
The judgment of the circuit court is vacated and tin's cause is remanded to that court with instructions to consider the ease on the evidence.
Judgment reversed.