Columbus St. Ry. Co. v. Pace

• Decision Date: 28 April 1903
• Citation: 68 Ohio St. 200,67 N.E. 490
• Parties: COLUMBUS ST. RY. CO. v. PACE.
• Court: Ohio Supreme Court

67 N.E. 490

68 Ohio St. 200

COLUMBUS ST. RY. CO. v. PACE.

Supreme Court of Ohio.

April 28, 1903

Error to Circuit Court, Pickaway County.

Joseph T. Pace, defendant in error, brought an action in the court of common pleas of Franklin county, Ohio, against the Columbus Street Railway Company to recover damages for personal injuries. The case has been three times tried, twice in the court of common pleas of Franklin county and once in the court of common pleas of Pickaway county. On the first trial the jury failed to agree, the second trial resulted in a verdict and judgment against the street railway company and in favor of the plaintiff, Joseph T. Pace. This judgment was on error, reversed by the circuit court of Franklin county. On a change of venue the case was tried the third time in the court of common pleas of Pickaway county, which trial also resulted in a verdict and judgment in favor of Pace. Thereupon error was prosecuted by the street railway company to the circuit court of Pickaway county, which court affirmed the judgment of the court of common pleas. The street railway company, plaintiff in error, is asking, in this proceeding, a reversal of said judgment of affirmance. Reversed.

Syllabus by the Court

1. The provision in section 5306, Rev. St., that ‘ 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,’ has special and exclusive application to trial courts, and such provision does not operate as a limitation upon the power of the circuit court, as a court of error, to reverse a case any number of times, on the ground that the verdict of the jury in the trial court was against the case on the weight of the evidence.

Booth, Keating, Peters & Butler, for plaintiff in error.

Samuel Hambleton, W. M. Thompson, and Bennett & Bennett, for defendant in error.

CREW J.

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 affect to be given to section 5306, Rev. St., 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 overruling of said motion for new trial. Upon the hearing of the case in the circuit court that court refused to consider the case upon the weight of the evidence, and refused to consider or pass upon that ground of error alleged in the motion for new trial, notwithstanding the overruling of said motion was one of the errors assigned and relied upon by plaintiff in error in its petition in error in that court. The reason given by said circuit court for such refusal can best be stated in the language of its only journal entry which is as follows: ‘ 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 court 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 Pickaway 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, Rev. St. Do the provisions of this section apply alike to both trial and reviewing courts, or are they limited in their operation and effect to trial courts only? It is the claim of counsel for defendant in error that the provisions of this section apply alike to all courts, whether courts of review or trial courts, and that the circuit court of Pickaway county was, therefore, without authority to reverse this judgment on the ground that it was against the weight of the evidence, the circuit court of Franklin county having previously reversed one verdict in this case on that ground, and that, being without right to reverse for that reason, said circuit court of Pickaway county was relieved from reviewing the case on the weight of the evidence, and therefore that its refusal so to do was not error. If counsel are right in their interpretation of the scope and meaning of the provisions of section 5306, they are right in their conclusions, otherwise not. As indicated by its terms and provisions, this statute is essentially a statute of practice and procedure, and it is found in the Revised Statutes under chapter 5, div. 3, of title 1, which title is denominated ‘ Procedure in the Common Pleas Courts, and in the Circuit Courts on Appeal’ ; and, while its position and place under this title is not necessarily conclusive or controlling in its interpretation, it is nevertheless significant as an aid in determining the intent and purpose of the Legislature as to its scope and operation, and as to the courts to which its provisions should apply, and, having been placed under this title, instead of under title 4, which latter title is designated ‘ Procedure in the Supreme Court, Circuit Courts and Common Pleas Courts, as Courts of Error,’ would seem to evidence an understanding and purpose on the part of the Legislature that it should have effect and application as to circuit courts only when sitting as courts of appeal or trial courts. The provision of this statute is, not that the same court shall not reverse a case more than once on the weight of the evidence against the same party in the same case, and it will be observed that the statute does not in express terms refer to the circuit court...