Prescott v. Haughey

On Petition for Rehearing.

Per Curiam.

Counsel for appellants in his brief in support of the petition for rehearing in this cause apparently assails the opinion of the court upon the ground that ihe holding therein is to the effect that it is merely a matter of discretion with the trial court to grant a new trial, where a motion therefor is properly presented, and embraces therein reason sufficient for sustaining it. No such interpretation can in reason be placed upon the opinion in this appeal. The verdict of the jury, as stated, was a joint one against both plaintiffs, and in favor of all the defendants. The application for a new trial was joint as to the movers, and the grounds assigned therein, while separate as to each other, were applied alike to all of the defendants, and the movers demanded thereby that the trial court treat the application as an entirety, and sustain it, not 'as to part of the defendants, but as to all of them, regardless of the fact that none of the reasons specified had any application whatever to the defendant Colfax. There are no facts exhibited by the record which even tend to support, as against him, any of the 129 reasons assigned for a new trial. It is evident, therefore, that appellants, under the circumstances, are not in an attitude successfully to complain in this appeal that the lower court erred in denying their motion for a new trial as an entirety.

'We held at the former hearing that the trial court might *524in its discretion have treated the motion as joint and separate in respect to the defendants and have sustained it as to those other than Colfax, in the event the facts, under the law, justified such action; nevertheless, the failure of the lower court to exercise this discretion, under the circumstances, was not open to review upon appeal to this court. The same conditions may be said to prevail as where a charge of the lower court is assailed in gross as erroneous in a motion for a new trial, parts of which charge are good, and others bad. The court may, in such cases, in its discretion, examine the different parts separately, and, if any are bad, grant a new trial; but it cannot be required to do so as a matter of right, under the particular circumstances in the case; consequently the failure to exercise such discretion cannot avail the moving party on appeal. This rule is substantially affirmed in the case of Ohio, etc., R. Co. v. McCartney, 121 Ind. 385, and the many other cases cited in the original opinion.

In the McCartney case, supra, on page 388 of the opinion, it is said by this court through Mitchell, J\: “The object of a motion for a new trial is to bring to the attention of the court the precise point in respect to which error is supposed to have been committed, with a view that it may be corrected.”

It certainly may be further said that when the particular error, or errors, assigned in the motion do not apply alike to all of the parties against whom it is directed, then the motion ought to specify as to which ones of said parties the supposed errors are applicable. In such cases it may then be easily ascertained by the court whether one or more of the grounds assigned are well taken as against some of the adverse parties, and not well taken as to others, and the action of the court upon the motion may be governed accordingly. We are referred to the case of Louisville, etc., R. Co. v. Treadway, 143 Ind. 689. That decision, however, lends no support to the contention of counsel for the petitioners. In that case each of the defendants filed a separate motion for judgment in its favor on the special verdict. All that this court *525did in that appeal was to affirm the judgment in part, and reverse it in part, as it was authorized to do under the express provisions of the code, and direct that the separate motion for judgment by the “Clover Leaf” Company be sustained. Had the motion for judgment been a joint one by both of the defendants, a different question would have been presented.

Counsel for appellants also cite Bartholomew v. Langsdale, 35 Ind. 278, where it is held, in effect, that an assignment of error in a motion for a new trial to the instructions as a whole is sufficient to require the court to search the entire charge for supposed errors. Had counsel for the petitioners, however, further extended his research, he would have discovered that the case last mentioned on this point is expressly overruled in Ohio, etc., R. Co. v. McCartney, 121 Ind. 385.

In addition to the authorities heretofore cited, the following, by analogy at least, support the rule asserted in this appeal: First Nat. Bank, etc., v. Colter, 61 Ind. 153; Boyd v. Anderson, 102 Ind. 217; Carnahan v. Chenoweth, 1 Ind. App. 178, and cases there cited.

We have given the reasons presented for a rehearing full consideration, and perceive nothing to warrant the court in granting the petition. It is therefore overruled.