*70On Petition fob, a Rehearing.
Black, C.— It is urged by the learned counsel for the appellee, that if we were correct in holding that the court erred in overruling the demurre.r to the second paragraph of the ■complaint, yet, inasmuch as the complaint sets forth two separate causes of action, we should have reversed the judgment ■only so far as it was based upon that paragraph, and should have affirmed it as to the cause of action stated in the first paragraph; and the appellee now offers to “remit” any recovery under the second paragraph, and asks this court to modify its opinion and judgment so as to reverse the judgment of the court below upon the second paragraph of the complaint and affirm it as to the first paragraph, in the event that the court shall not grant a rehearing.
We could not make such a modification without a rehearing. We could not affirm the judgment in part without examining and determining whether there is any other error in the record than that pointed out in the original opinion, beyond which it was not necessary to look.
But we did not fail on the original hearing to give attention, as requested then by the learned counsel for the appellee, to the question whether it would be proper to affirm in part and reverse in part. The verdict was general, and the judgment thereunder was general for the damages, and the defendants were enjoined from molesting, disturbing or obstructing the plaintiff in the full and free use of the private way mentioned in the first paragraph of his complaint, and also the highway mentioned in the second paragraph of the complaint, except as to certain swinging gates.
If the court erred in overruling the demurrer to the second paragraph of the complaint, that error was carried into the verdict and into the judgment. It can not be said that a judgment against the defendants on the first paragraph was any more authorized by the verdict than was a judgment against them on the second paragraph; and it would not have *71been proper, while the verdict was permitted to stand, to set ■aside the judgment merely as to a part of that portion of the relief referable to the second paragraph of the complaint, such part being authorized by the verdict. The judgment can not be severed so that we can say that a certain definite part thereof is affected by the error, and that the remainder is unaffected thereby. Of course the appellee can not dismiss as to his second paragraph of complaint at this stage, and treating his offer to “remit” as in effect a request that a rehearing be granted, and that thereon the judgment be affirmed in part, it can not be accepted.
It is insisted that the action of the court in overruling the ■demurrer to the second paragraph of the complaint was not properly before us. The transcript for this appeal was made by the clerk of the Dearborn Circuit Court upon written directions of the appellants, as provided in section 558, code of 1852, which w7as the same as is section 649, E. S. 1881, being a transcript of so much of the record as the appellants so directed, with the written directions appended.
The ruling upon demurrer which we held to be erroneous was. made by the Ohio Circuit Court. It is contended for the ■appellee that the ruling upon the demurrer is not legally shown, because the record brought to this court does not contain a certificate of the clerk of the Ohio Circuit Court appended to the transcript filed in the Dearborn Circuit Court on change of venue, and because in the written directions for a transcript the appellants did not direct the clerk to certify said transcript from the Ohio Circuit Court, and the clerk of the Dearborn Circuit Court does not certify that the record sent to this court includes a transcript from the Ohio Circuit Court.
The appellants did not direct the clerk to transcribe any transcript, but they did direct him to make a transcript of the papers filed in the Ohio Circuit Court and of the submissions and the rulings of the court, specifying the papers and rulings, and the clerk’s certificate conforms to the written directions. It was not necessary to designate these portions of the *72record as being parts of a transcrijit from the Ohio Circuit-Court. This court will not be prevented by informality or omission in the appellants’ written directions for a transcript, from looking into any portion of the record before it, as may become necessary to a proper decision of the cause. No question was made in the court below, and none is made here, as to the regularity and validity of the change of venue. Without a valid change of venue, the Dearborn Circuit Court would have had no jurisdiction of the subject-matter of the first paragraph of the complaint, relating to a private way in Ohio county. It can not be permitted to the appellee, who obtained a judgment in the Dearborn Circuit Court upon a change of venue from the Ohio Circuit Court, to say in this court, for the purpose of maintaining his judgment, that there was no change of venue, without which his judgment could not stand. He can not repudiate here the proceedings which led up to that judgment, which he recognized and took advantage from .- in the court below, and upon which his judgment in part depends. We can not ignore or reject a part of the proceedings in the Ohio Circuit Court and recognize and sustain another part thereof. What might be the proper result if the appellants had raised and presented a question as to the change of venue, need not be considered.
Filed October 13, 1883.Counsel for the appellee have again argued the question of the sufficiency of the second paragraph of the complaint, but we are unable to reach a different conclusion thereon.
Per Curiam. — The petition for a rehearing is overruled.