ON APPLICATION FOR REHEARING
No. 886. Decided Nov. 18, 1938.
By WASHBURN, J.Defendant (appellee) has made application for a rehearing. With one exception, which will be hereinafter noted, the application does not call our attehtion to any matters which did not receive careful consideration before we reached a decision in the case, and as to such matters we find nothing in the application to warrant a rehearing.
The exception noted is in reference to the power of this court to render final judgment in favor of the plaintiff (appellant); the claim being that there is a motion for a new trial pending in the Common Pleas Court which has not been disposed of, and that because of §11599, GO, neither the Common Pleas Court nor this court has power to render final judgment until such motion has been disposed of. The case of Benning v Schlemmer, 57 Oh Ap 457, is relied upon for this claim.
As to that matter, the record discloses that on January 20, 1938, the jury returned its verdict in favor of the plaintiff; that on January 22, 1938, a motion, denominated a “motion for judgment notwithstanding the verdict,” was filed, and that also on January 22, 1938, a second motion, denominated a “motion for a new trial,” was filed by the defendant; but said second motion asked not only “for a new trial” but also “for final judgment in her favor.”
The record further discloses that the motion for- judgment notwithstanding the verdict was not based upon “the statements in the pleadings,” but was based upon “the evidence received upon the trial.”
The next day after the motions were filed, the trial court entered upon journal of the court its judgment, now under review, in the following language:
“The motion of the defendant herein for judgment in her favor notwithstanding the verdict of the jury, came on to be heard, and upon consideration *188said motion is granted. It is, therefore, considered by the court that judgment be and the same is hereby rendered in favor of the defendant herein and that the said defendant recover of the plaintiff her costs herein expended. To all of which the plaintiff excepts.”
When the verdict in favor of the plaintiff was returned^ by the jury, the plaintiff was entitled to a judgment upon the verdict if the defendant filed nothing in the case; and after the defendant filed said motions, there being no error shown by the record as to admission or rejection of evidence at the trial, or as to the weight of the evidence as such, the plaintiff was still entitled to a judgment on the verdict if the court found that reasonable minds could reach but one conclusion upon “the evidence received upon the trial”: to-wit, that the facts were as found by the jury in their verdict.
In this connection, said §11599, GC, must be considered in connection with §11601, GC, which latter section was so amended as to authorize the trial court to render such a judgment in favor of either party.
By such amendment the legislature enlarged the power of the trial court to render such a judgment, as it had a constitutional right to do, and under the constitution the Court of Appeals is empowered to review the exercise of such power by the trial court.
If the trial judge under that section renders judgment on behalf of the defendant “upon the evidence received upon the trial,” and the reviewing court finds that there is no error in the admission or rejection of evidence shown by the record, and that “upon the evidence received upon the trial,” or the evidence which should have been received, the trial court could properly reach no conclusion other than that the judgment should have been rendered for the plaintiff instead of for the defendant, the reviewing court, upon a reversal of said judgment, has the power to render final judgment in favor of the party entitled thereto.
In our decision in this case, we found that “upon the evidence at the trial” the only conclusion that reasonable minds could reach was that reached by the jury in the verdict which was returned; and since this application was made we have re-examined- the record, which is short, and we are still of that opinion. We have also found m our reexamination of the record that there was no error in the admission or rejection of evidence upon the trial.
The trial court erred in rendering judgment upon “the evidence received upon the trial” in favor of the defendant, when the court should have rendered judgment upon the verdict in favor of the plaintiff, and we therefore render the judgment that should have been rendered as set forth in the opinion heretofore rendered in this case.
This holding is not in conflict with Benning v Schlemmer, supra. A rehearing herein is therefore denied.
STEVENS, PJ. & DOYLE, J., concur.