On Rehearing.
PER CURIAM.In the opinion it was directed that the case be remanded “for a new trial upon the issues pertaining to the one sale and draft as above indicated.” In the order, entered according to the usual form, the case was remanded for a new trial. Upon the theory that the judgment was affirmed as to two of the issues and thereby became final, plaintiff is proceeding to apply to the Supreme Court for certiorari, and asks that the remanding entry be amended to comply with the opinion.
We are compelled to think that the form of the opinion in this , respect was inadvertent, and that the remanding entry properly expressed the only action we can take." In the court below a single verdict in favor of the defendant and against the plaintiff was returned by order of the court, and the journal entry so recites. It may be assumed that the final judgment was the only one which could be entered upon such a- verdict, viz. that the defendant was not guilty and should be ■ discharged without liability. We have no practice which permits affirming a portion of a single judgment at law, while remanding other portions for a new trial; and wé do not see that this can be generally permissible when the judgment was for defendant, any more than when it was for the plaintiff.
*227Where cases separately commenced have been consolidated for trial, or where several distinct judgments in favor of separate plaintiffs are for convenience grouped in one entry in one action, the reviewing court can properly effect a severance, and affirm some and reverse others. National Surety Co. v. United States (C. C. A. 6) 228 Fed. 577, 587, 143 C. C. A. 99, L. R. A. 1917A, 336. This case does not take that aspect. We find here that all three items sought to be recovered are grouped in one count, which has as its real cause of action a conspiracy, and the three separate items considered are the items of damage alleged — all arising and claimed under one cause of action. There cannot be a final judgment granting or denying a part of the damages claimed under one count, and at the same time contemplating further proceedings in the suit to determine the liability as to the remainder of the damages claimed. This would be equivalent to splitting a single cause of action.
The opinion filed will be amended, by striking out the words “upon the issues pertaining to the one sale and draft as above indicated.”