I concur in the 3udgment only because appellant has not made his question.
The 3‘ournal entry, through which the court speaks does not limit the court in sustaining the motion for a new trial to the reason set out in his opinion as found in the bill of exceptions. Nor does the refusal of the defendant to accede to the condition imposed in the opinion on the motion constitute a stipulation which would read into the journal entry the refusal as the sole ground for the sustaining of the motion. If it did, I would hold that the court abused his discretion in making the order.
Such a consent as was required of the defendant is not a remittitur and is unknown to the law. That party only can remit in whose favor a money verdict has been returned.
Of course, defendant could not accept the condition imposed unless ready to abide by the verdict as reduced. To have done so would have worked an estoppel upon defendant to further question the verdict.