APPLICATION FOR REHEARING
No 1568. Decided June 21, 1939
BY THE COURT:This matter is before us upon application of the plaintiff for rehearing.
Plaintiff earnestly presents his claim that this Court was in error when it determined that the sustaining of the motion for new trial was not a final order reviewable by this Court, unless it clearly appeared that the trial court abused its discretion and that the court could not find such an abuse upon the evidence presented.
In the first paragraph of the plaintiff’s brief, it is asserted that this Court has set forth new rules. Plaintiff misapprehends the opinion of the Court. The Court’s holding was that an order of the trial court setting aside a verdict is not a final order reviewable by the Court of Appeals “unless it clearly appears that the trial court has abused its discretion”. The opinion was to the effect that such an abuse of discretion must clearly appear and that, in the judgment of the Court, such abuse of discretion was not made to appear.
Plaintiff’s counsel is correct, as stated on page 4 of his brief, that this Court was in error when it stated, on page 3. of the opinion, that “it is stipulated that the so called decision, etc., are tó be incorporated in the bill of exceptions”. The transcript of the docket and journal entries show that on February .27, 1939, an entry was made to the effect,
“For good cause shown, it is hereby ordered that the decision of the Court and motion for new trial and motion for judgment, etc., be and the same hereby are incorporated and made a part of the bill of exceptions in this action.”
This Court inadvertently stated that “it is stipulated” that such matter be incorporated in the bill of exceptions. We do not understand that the inadvertent statement of the Court, that the Court’s action was by virtue of a stipulation instead of being the action of the Court itself, makes any difference. The matters were, as a matter of fact, incorporated in the bill of exceptions.
Counsel relies on §11564 GC. The present section provides t.nat when the decision is not entered on the record or the grounds of the objection , do not sufficiently appear -n the entry * * * the party excepting must reduce his objection to writing, .etc.
Counsel asserts that in view of this *434section only errors complained of in support of the abuse of discretion need be incorporated in the bill and brought before the reviewing court. Counsel is correct in this, but our- holding was based upon the fact that the matters thus presented do not clearly show an abuse of discretion and to this opinion we still adhere.
Counsel cites the case of Lee v Benedict, 23 C. C. (N.S.) 561. The Court on page 565 considers the question of the effect of a remittitur „nd states:
“It is urged that this judgment even with the remittitur was erroneous unless the defendant consented to the remittitur.”
“We know of no authority for such a proposition, nor do we know of any reason for such a proposition. The practice for so long a tíme that the memory of man runneth not to the contrary has been to enter a judgment upon the plaintiff remitting such an amount as the Court thinks should be remitted without reference to whether such judgment is satisfactory to the defendant or not. There is no error in this regard, provided the evidence was such as to justify the jury in finding the amount after deducting the remittitur.”
The defendant’s motion for new trial presents fifteen grounds upon which he claims to be entitled to a new trial, among them .being that the verdict is not sustained by the weight of the evidence and that the Court erred in refusing to grant a motion for a directed verdict and for other errors complained of. There was before us no bill of exceptions, exhibiting the evidence, from which we were able to vrrive at a conclusion that “the evidence was such as to ’ justify the jury m finding the amount after deducting the remittitur.”
So far as we are advised there may have been evidence that would have supported the defendant’s motion for a new trial and that the Court was not willing to compel the defendant to accept the remittitur and thereby abandon its claim 'that it was entitled to a new trial for the other grounds stated in its motion. Our conclusion was, and still is, that the evidence presented is not sufficient upon which to base a judgment that the Court abused its discretion and we could arrive at no such conclusion unless we had before us the entire record.
Counsel for plaintiff on page 4 cites a large number of cases all of which we have examined and most of which do not impressively bear upon the question. Among the most pertinent is that of Webster v Pullman Co., 19 Abs 289, from, the Eighth District, wherein it is held that a ruling of the trial court granting a motion for new trial is a final order where such order constitutes an abuse of discretion and that motions for new trials, upon the ground that the verdict is against the weight of the evidence, are addressed to the discretion of the trial court and, if granted, the judgment will not be disturbed on error unless it is a strong case and there has been a gross abuse of discretion. It is further held that if a claimed abuse of discretion, in sustaining a motion for new trial, is found to exist upon perusal of the record, it is the duty of the reviewing court to find and hold that the complaining party has been denied a fair trial and has been deprived of a “substantial right m an action — and prevents a judgment”. The Court quotes from Beaumont v Herrick, 24 Oh St 445 to the effect,
“If the exercise of such discretion is reviewable on error in any case, it can only be where the record shows, in view of all the circumstances under which the court acted, an abuse of discretion resulting in a denial to the party of a fair trial.”
There can be no complaint as to this statement of the law. It is virtually the holding of the Supreme .Court in the case of Hoffman v Knollman, 135 Oh St 170, to the effect that an order setting aside a general verdict is.not a final order reviewable. by the Court of Appeals “unless it clearly appears that *435the trial court has abused its discretion in granting such an order.”
This Court is without hope of convincing counsel for plaintiff of the correctness of its view, but we have, after fairly digesting his brief and reexamining our former opinion, come to the conclusion that nothing can be gained by allowing the application for rehearing.
Application denied.
HORNBECK, PJ, GEIGER & BARNES, JJ. concur.