13 Utah 1 | Utah | 1896
This actioin was brought in the court below to recover damages for personal injuries alleged to have been sustained by the wrongful acts of the servants of the defendant company. The complaint contained two counts, and at the trial the court directed a verdict to be given for the defendant on the first count; and the cause having been submitted to the jury on the second count, a verdict was returned for the plaintiff. The defendant thereupon moved the court for a new trial on the second cause of action, which motion was-granted. The plaintiff then appealed from the action of the court directing a verdict for the defendant on the first count, and also from the order granting a new trial on the second, and the appellate court affirmed the action of the lower court on the first, and reversed its order granting a new trial on the second count, and ordered the original judgment to be reinstated. In pursuance of the mandate of the appellate court, said judgment was reinstated, and from the judgment so entered, the defendant prosecuted this appeal, which is now being considered, on motion to dismiss, on the ground that it is substantially a second appeal on the same state of facts.
The only material question raised by this motion is whether, under the circumstances apparent from the record in this case, an appeal will lie from a judgment entered in pursuance of the mandate of the appellate court. Counsel for the appellant contend that this appeal is proper because the former one was simply from an order granting a new trial, and not from the judgment which was vacated by said order; that, after the original judgment was reinstated, it was subject to appeal, to present questions which could not be raised on the appeal