After investigation and review of the facts and authorities we have concluded that the motion for a rehearing ought to be refused, and we will summarize briefly our holdings on the issues.
Opinion. — 1. When the District Judge granted the new trial on the issue of false imprisonment, it had the effect to grant a new trial on the other issue of malicious prosecution, and reopened the entire case as it stood before the trial. If it did not have this effect it had no effect at all. The trial judge thought differently, and in this we think he has fallen into error. He proposes to hold the verdict on the issue of malicious prosecution, which was in favor of defendants, in abeyance and render judgment thereon at some future time when there is a final trial on the other issue, of false imprisonment, and in this way, as he thinks, avoid a violation of the statute prohibiting more than one final judgment in the District Court at the same suit.
When the new trial was granted the verdict was set aside and killed in its entirety and could not be used as the basis of a judgment after a subsequent trial of the court. This proceeding would in effect be the taking of a verdict from the two juries in the same suit to support one judgment, an anomaly in our practice that cannot be upheld. If this procedure could be allowed when there are two counts it could be done in case of any number of counts in the petition, and there could be as many verdicts as counts, running along through as many terms of the court, all taken as the basis of one judgment. Two or more verdicts of different juries to support one judgment would unquestionably be improper.
2. The effect of the acts of the court shown by the record amounts to a refusal to try the case "agreeably to the principles and usages of law."
3. We have no doubt that in such case this court has jurisdiction and it is its duty on application of the party aggrieved to issue the writ of mandamus as ordered herein.
4. The case is not in the attitude it would be in if the court below had sustained a demurrer to that branch of the case claiming damages *Page 604 for malicious prosecution upon the ground that it could not be joined in the same suit for false imprisonment. The sustaining of such a demurrer would be a trial. As the case stands there has been no trial upon that issue except the one set aside.
We do not pass upon the question as to whether false imprisonment and malicious prosecution could be joined in one action for damages, whether occurring at the same time or growing out of the same transaction, and the acts of the court do not place that issue before us, nor do we think that issue should be considered by us in passing upon the plaintiff's right to mandamus. No such demurrer was sustained. The case stands now as it stood before the trial, with both of those issues to be tried in some form, and in our opinion it is the duty of the court below to try those issues in some way "agreeably to the principles and usages of law."
5. We are quite convinced from the record before us that the honorable trial judge will not change his mind by the time the case is called again in his court and try the whole case; nor do we believe we should consider such a possibility. He has unequivocally refused to recognize the right of such a trial — entered orders refusing it. He has answered in this proceeding denying such a right and since the writ was granted, on motion for a rehearing, he has undertaken to show by a lengthy, forcible and learned argument filed, that he was right in refusing to hear the issue which he contends has been eliminated from the case, thus re-affirming in this court the correctness of the refusal to try the case on the issues as they stand. We should not under the circumstances indulge the presumption that he will change his ruling of his own accord without the writ prayed for.
We are convinced that the facts shown make it our compulsory duty to grant the writ. The motion for rehearing is overruled.
Overruled.
KEY, ASSOCIATE JUSTICE. — For reasons heretofore given I dissent.