Dissenting Opinion.
Roby, P. J.The defendant had a right to have his ease tried by a jury. Such right extended to every issue involved therein. It was submitted to a jury, and a verdict returned which, as to one of said issues, is held by the judge to have been unsupported by evidence. A jury which finds one fact against the defendant without evidence may also find other facts against him in the same way, and, when he is able to establish to the satisfaction of the judge that it has so found, he is entitled by the express provision of the statute to a new trial. In this case the defendant made his motion therefor, and the trial judge found that the statutory grounds did exist. At this juncture nothing remained except to sustain the motion. The trial judge, however, instead of doing so, entered into a bargain with the plaintiff, and, upon a consideration rendered, refused to perform the duty enjoined upon him by the statute. The right thus to abrogate the statute does not exist. The defendant was entitled to have damages assessed by a jury. The trial judge deprived the defendant of that right and assessed the damages himself. Another jury may view the entire case differently and give the defendant a verdict, or fix an amount as damages less than the amount fixed by the judge.
In the ease of Nickey v. Zonker (1899), 22 Ind. App. 211, 220, the following language was used: “If it can be said, with certainty, that the verdict as reduced by the allowance of the remittitur is within the conflicting evidence, the appellants have been deprived of their right, which they never *55consented to forego, to have the judgment of the jury upon the credibility of the witnesses and the weight of evidence upon matters of fact, the decision of which was not within the mere discretion of the triers, uncontrolled by any fixed rule of law, but was subject to a definite rule of measurement of damages. The verdict of the jury was contrary to law, and the unwarranted action of the court could not cure it of such defect.”
Both Cromwell v. Wilkinson (1862), 18 Ind. 365, and Carmichael v. Shiel (1863), 21 Ind. 66, are cited with apparent approval. In the former ease the right of the judge to order a remittitur in eases,of this class is denied. In the latter ease the decision in Cromwell v. Wilkinson, supra, is declared to be correct on principle. An attempt is made in the main opinion to distinguish Nickey v. Zonker (1899), 22 Ind. App. 211. The verdict in that case was declared to be “contrary to law,” and the “unwarranted action of the judge could not cure it of such defect.” A verdict based upon incompetent evidence is certainly no more contrary to law than one based upon no evidence whatever. The verdict in the case at bar was contrary to law, as the trial judge found, and, if he could not trade away the defendant’s right to have damages assessed and the entire case tried by a fair jury in one instance, he could not do it in the other.
Cromwell v. Wilkinson, supra, as a matter of authority is controlling. Nickey v. Zonker, supra, accords with it, and is, upon principle, correct. When a party assigns one ground for a new trial, he does not waive any other objection which he may have, nor in any way concede the correctness of the verdict.
I therefore dissent.