On Petition for Rehearing.
[Decided June 30, 1910.]
Fullerton, J.Judgments on the verdicts were directed by us at the former hearing of these causes in the belief on our part that no new trial had been asked for by the respondent. By a supplemental transcript, filed by leave of court, it is made to appear that we were mistaken in this regard, and that in fact such a motion was filed which was not ruled upon by the trial court. This fact requires a modification of our former order. The respondent would have been entitled to insist upon his motion for a new trial, and to have the ruling of the trial court thereon, had the court overruled his motion for judgment notwithstanding the verdicts instead of granting it, and he should not be denied this right, since we do not permit the order of the court to stand. In other words, the respondent is entitled now to the same right he would have been entitled had the trial court entered the proper judgment on the motion.
The direction heretofore given as to the form of the judgment will be recalled and the clerk directed to enter an order reversing the judgment appealed from, and remanding the cause with instructions to the trial court to take such further proceedings therein as in its opinion the justice of the case requires.
Rudkin, C. J., Chadwick, and Gose, JJ., concur. Morris, J., took no part.