State ex rel. Blasko v. McGinnis

• Decision Date: 07 May 1958
• Docket Number: No. 35310,35310
• Citation: 150 N.E.2d 409,167 Ohio St. 532
• Parties: , 5 O.O.2d 209 The STATE ex rel. BLASKO, Appellee, v. McGINNIS, Appellant.
• Court: Ohio Supreme Court

Page 532

167 Ohio St. 532

150 N.E.2d 409, 5 O.O.2d 209

The STATE ex rel. BLASKO, Appellee, v. McGINNIS, Appellant.

No. 35310.

Supreme Court of Ohio.

May 7, 1958.

John W. Kerensky, Youngstown, for appellee.

Marvin Traxler, Youngstown, for appellant.

PER CURIAM.

Summarizing the assignments of error, the question presented to this court is limited to a determination of whether the judgment of the Court of Appeals that the Court of Common Pleas did not abuse its judicial discretion in granting the complainant a new trial was error.

'Abuse of discretion,' in the sense of this question, has been defined in substantially the same language in the cases of Steiner v. Custer, 137 Ohio St. 448, 31 N.E.2d 855, 857, and Klever v. Reid Bros. Express, Inc., 154 Ohio St. 491, 96 N.E.2d 781.

Paragraph two of the syllabus in the Klever case is as follows:

'2. The term, 'abuse of discretion,' as it relates to an order granting a motion for a new trial, connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary or unconscionable attitude on the part of the court in granting such motion.'

However, in neither of the above cases was the new trial granted on the ground that the verdict was not sustained by sufficient evidence, as is the case here. The unusualness of the instant case in part prompted the allowance of the motion to certify.

The law recognizes that the discretion of the trial court in this area can be abused. Apparently the Legislature has sought to minimize this possibility by the enactment of Section 2321.18, Revised Code, providing that only one new trial may be granted in the same case on such ground.

If we assume as do both parties that the sustaining of a motion for new trial can be a final order only if the trial court abused its discretion in sustaining such motion (see Hoffman v. Knollman, 135 Ohio St. 170, 20 N.E.2d 221, and paragraph one of the syllabus in Steiner v. Custer, supra, but see State ex rel. Devine v. Harter, 167 Ohio St. 51, 54, 55, 146 N.E.2d 437, and Lehman v. Haynam, 164 Ohio St. 595, 602, 133 N.E.2d 97, 102), nevertheless, in such case, the Court of Appeals upon review must go thoroughly into the record before it can determine that there was no abuse of discretion in granting a new trial and therefore no final order from which appeal could be made.

It now appears from the briefs and arguments that defendant bases his claim that the trial court abused its discretion in sustaining plaintiff's motion for a new trial both on alleged unreasonable and arbitrary action of the court during the trial and for the reason that 'this matter was properly submitted to the jury which after due deliberation considered the evidence submitted and the credibility of the witnesses, unanimously found for the defendant.'

As to the claimed unreasonable and arbitrary...