Miller v. Ashcraft

• Decision Date: 21 November 1895
• Citation: 98 Ky. 314,32 S.W. 1085
• Parties: MILLER v. ASHCRAFT.
• Court: Kentucky Court of Appeals

32 S.W. 1085

98 Ky. 314

MILLER v. ASHCRAFT.

Court of Appeals of Kentucky.

November 21, 1895

Appeal from circuit court, Nelson county.

"To be officially reported."

Action by George L. Miller against E. J. Ashcraft for false imprisonment. A verdict for plaintiff was set aside, and a new trial granted. From the order setting aside the first verdict, and from an order overruling plaintiff's motion made at the termination of the second trial, at which he received a smaller verdict, to enter judgment on the former verdict, plaintiff appeals, and defendant, on cross appeal asks reversal of the judgment entered on the last verdict. Affirmed.

Geo. S Fulton and Jno. S. Kelley, for appellant.

Laf S Pence and C. T. Atkinson, for appellee.

LEWIS J.

George S. Miller brought this action to recover for false imprisonment against E. J. Ashcraft, who was at time of the act complained of marshal of the town of New Hope. At the trial, the verdict of the jury was in favor of plaintiff for $500 in damages, but upon the grounds filed it was set aside, and a new trial granted. At the second trial the verdict was again for plaintiff, but for only $100 in damages. And now this is an appeal by plaintiff from the order of court setting aside the first verdict, and granting a new trial, and from the order overruling his motion, made at termination of last trial, to enter verdict first rendered as the judgment of court. And defendant not only resists reversal of either the order granting a new trial or the one overruling motion of plaintiff mentioned, but on cross appeal asks reversal of the judgment entered in pursuance of the last verdict.

It is manifest, if the order granting a new trial be reversed, it must result in entry of judgment for the amount first found by the jury, and annulling proceedings had at the second trial. We will therefore at the outset determine whether that order was erroneous. In Ewing v. Price, 3 J. J Marsh. 520, it was said: "There is a material and obvious distinction in the grounds which will require the reversal of a judgment overruling and one granting a new trial. By granting a new trial the case is only kept open for another trial on the merits, and in that trial each party has equal chance for justice. But by overruling a motion for a new trial the unsuccessful party is concluded, and may be subject to irretrievable loss and irreparable injustice." Accordingly this rule was there laid down: "When the new trial is granted, this court will not feel itself bound to reverse the judgment, unless it appears plainly that there was no good reason for the new...