Minnear v. Halloway
| Decision Date | 09 March 1897 |
| Citation | 56 Ohio St. 148,46 N.E. 636 |
| Parties | MINNEAR v. HALLOWAY. |
| Court | Ohio Supreme Court |
Error to circuit court, Morrow county.
Action by Emma B. Halloway against Maggie B. Minnear. The defendant in error obtained a judgment against Benjamin F. Minnear, the husband of the plaintiff in error, under section 4356, Rev St., for damages for the sale of intoxicating liquors to the husband of defendant in error. The judgment not being paid the defendant in error, Mrs. Halloway, commenced an action against Maggie B. Minnear and her husband, under section 4364, Rev. St., to subject the building in which the liquors were sold to sale for the payment of the judgment. She averred in the petition that the premises were owned by Mrs Minnear at the time of the sale of the liquors, and ever thereafter, and that she permitted her husband to use and occupy the premises for the sale of liquors. Mrs. Minnear, by her answer, denied that she permitted the premises to be so used and occupied. The court of common pleas found in favor of Mrs. Minnear, and rendered judgment for her, dismissing the petition. A motion was made for a new trial, one ground of which was that the finding and judgment were against the weight of the evidence, which motion was overruled, and exceptions taken. A petition in error was filed in the circuit court by Mrs. Halloway, and one of her assignments of error was that the court erred in overruling her motion for a new trial. The circuit court reversed the judgment generally and then proceeded further, and rendered a final decree against the defendant below, finding the amount due on the judgment, that the facts stated and allegations in the petition were true, and ordered the said premises to be sold as upon execution for the payment of said judgment and costs, and remanded the cause to the court of common pleas for execution. Thereupon the plaintiff in error filed her petition in this court, seeking to reverse the judgment of the circuit court, not only as to the said decree so rendered, but also as to the judgment of reversal. Reversed.
1. When a higher court reverses the judgment of a lower court upon the ground that the verdict or judgment is not sustained by sufficient evidence, or is against the weight of the evidence, the cause must be remanded to the lower court for a new trial; but this does not apply to orders made on hearings on motions.
2. Where the controlling facts in a civil action are conceded by the parties in their pleadings or evidence, or both combined, without conflict as to any material fact, so that the error of the court lies in the application of the law to such facts, a higher court, after reversing the judgment for such error of law, may proceed and render such judgment as the court below should have rendered upon such facts, or remand the cause to the court below for such judgment.
L. K. Powell and John DeGolley, for plaintiff in error.
John A. Connally and W. T. Vaughn, for defendant in error.
BURKET, C. J. (after stating the facts).
The reversal of the judgment by the circuit court was general, without stating any ground therefor, and in such case it is usual to hold the reversal to be upon all the grounds of error assigned in the petition in error. One of the assignments of error in this case was the overruling of the motion for a new trial, and one of the grounds of the motion for a new trial was that the finding and judgment were against the weight of the evidence. One ground of reversal was, therefore, that the finding and judgment were against the weight of the evidence. The judgment of reversal must therefore be affirmed, because under section 6710, Rev. St., this court is not required to weigh the evidence to ascertain whether the circuit court was right or wrong in said reversal. The circuit court might well find, upon weighing the evidence upon the issue joined, that the judgment of the court of common pleas was against the weight of the evidence, and therefore reverse the judgment as it did. But, having reversed the judgment, had the circuit court the right, under our statutes, to proceed and render final judgment on the merits of the case, upon the evidence contained in the bill of exceptions? Section 6726, Rev. St., provides that, upon a reversal of a judgment by the circuit court, that court shall proceed to render such judgment as the court below should have rendered, or remand the cause to the court below for such judgment. It has been repeatedly held by this court that the circuit court cannot review a case upon the weight of the evidence, unless a motion for a new trial upon the ground that the judgment is not sustained by sufficient evidence, or is against the weight of the evidence, has been filed and overruled, and that this rule is applicable to all cases, both at law and in equity. Westfall v. Dungan, 14 Ohio St. 276;Ide v. Churchill, Id. 372; Randall v. Turner, 17 Ohio St. 262; Turner v. Turner, Id. 449; Spangler v. Brown, 26 Ohio St. 389;Everett v. Sumner, 32 Ohio St. 562. In such cases the exception upon which the petition in error is based is that the court erred in overruling such motion for a new trial, and the object of reviewing the testimony is to ascertain whether such motion should have been sustained or overruled. In such cases the error sought to be corrected is the error in overruling such motion for a new trial; and, if the circuit court finds such error to exist, it should correct the error by doing that which the court below should have done; that is, sustain the motion for a new trial. This would make it necessary to reverse the judgment rendered by the court below, and to remand the cause to that court for a new trial.
It has often been urged, and by some cour...
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