Krantz v. Rio Grande Western Ry. Co.

• Citation: 43 P. 623,13 Utah 1
• Decision Date: 30 January 1896
• Docket Number: 678
• Court: Supreme Court of Utah
• Parties: JOSEPH KRANTZ, RESPONDENT, v. RIO GRANDE WESTERN RAILWAY CO., APPELLANT

43 P. 623

13 Utah 1

JOSEPH KRANTZ, RESPONDENT, v. RIO GRANDE WESTERN RAILWAY CO., APPELLANT

No. 678

Supreme Court of Utah

January 30, 1896

Appeal from the district court of the Third judicial district Territory of Utah. Hon. S. A. Merritt, Judge.

Action by Joseph Krantz against the Rio Grande Western Railway Company. Judgment for plaintiff. Defendant appeals. Dismissed.

Appeal dismissed.

Bennett Bradley & Marshall, for appellant.

C. S Varian and E. W. Taylor, for respondent.

BARTCH J. ZANE, C. J., and MINER, J., concur.

OPINION

BARTCH, J.:

This action 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 from the order granting a new trial; and that the defendant had no previous opportunity to appeal from the judgment. We think the position assumed by the appellant is not well taken. It had an opportunity to appeal from the judgment in the first instance, and all the matters of which it now complains could have been reviewed. Instead of that, it moved for a new trial, which was granted, and then the respondent herein appealed. That appeal brought up the entire record for examination, and with that record before it, the appellate court had power to consider, not only questions respecting the rulings of the court, made in the course of the trial, but also to consider the question whether or not the verdict was excessive. Comp. Laws Utah, § 3400. While it is true, as a general rule, that questions respecting the sufficiency of the complaint cannot be considered by the court on motion for a new trial, nor on an appeal from an order granting a new trial, because such questions are not comprehended in the statutory ground for such motion (Comp. Laws Utah 1888, supra; Jacks v. Buell, 47 Cal. 162; Mason v. Austin, 46 Cal. 385), still, if the appellant herein seriously doubted the sufficiency of the complaint, it could have been tested, and all the points now insisted upon could have been considered by an appeal from the judgment, instead of a motion for a new trial. The attempt now to present them for review, on appeal from the judgment which was entered in pursuance of the mandate of the appellate court, must fail, because it is, in effect, an appeal from our own judgment. In deciding this case on the former appeal, this court said: "We are of the opinion from this record that the appellant is entitled to recover from the railroad company, and are not disposed, and do not find it necessary, to put him to the expense and...