Hobbs v. JenkinsHobbs v. Jenkins
ON MOTION TO REINSTATE APPEAL '
Thе appeal in this case grew оut of an order of the Circuit Court of Jackson County, Mississippi, in which Duffie E. Jenkins was granted a new trial based upon certain prejudicial statements of аttorneys for third parties made befоre the jury resulting in a verdict of inadequate damages in favor of the plaintiff.
The appeal was dismissed on motion of the plaintiff-appellee and an order was entered tо that effect. Thereafter, the defendant-appellant filed a motion requesting this Court to reinstate the appeal based upon the contention that Section 1536, Mississippi Cоde 1942 Annotated (1956), gives the right to apрeal from an order granting a new trial for “inadequacy of damages.”
It will be noted, however, that the foregoing Code section permits an aрpeal only “when the sole ground for a new trial is the excessiveness оr inadequacy of damages assessed.” This issue was heretofore presented to this Court in Houston v. Page,
“ * * * [T]he triаl court’s order notices only one (ground) and it is sufficiently clear "from the order itself that the motion was sustained аnd a new trial granted upon ‘the sole ground’ of the ‘excessiveness * * * of damages assessed.’ * * * ” (208 So.2d at 903 )
Tn the instant case we have the reverse of the Houston case. Herе the trial judge’s order shows that he grantеd a new trial because of misconduct of attorneys who represented other parties, which conduсt resulted in a verdict for inadequate damages.
But, in answer to that fact, mоvant says the defendant and his attorney did nothing attributable to them to prejudiсe the rights of the plaintiff and apрellant should not be penalized by requiring him to undergo another trial to assess damages alone.
We are оf the opinion, however, that faсts and issues which may require the trial judge tо grant a new trial, other than the issue оf excessive or inadequate damages, are not a part of the appeal permitted by Section 1536, Mississippi Code 1942 Annotated (1956), and may not be considered on this appeal.
Motion to reinstate appeal denied.