OPINION MODIFYING MANDATE We have before us the appellant's petition to modify the mandate in our decision rendered on the 26th day of November, 1946. The appellant filed a claim against the estate of Adam W. Sherer, deceased, to which the appellee, as the administratrix thereof, addressed a set-off. The trial court found against the appellant on her claim and against the appellee on her set-off. The appellant's motion for a new trial reads as follows: "The above named claimant, Laura Stamper, moves the court for a new trial in the above entitled cause for the following reasons, viz: . . . ." This motion was overruled and upon appeal to this court we found error effecting the judgment against the appellant on her claim and issued the following mandate: "Judgment against appellant on her claim is reversed with instructions to sustain her motion for a new trial." The appellee filed no motion for a new trial of the issues presented by the set-off. She perfected no appeal from the adverse judgment thereon and assigned no cross-errors in the appellant's appeal. By reason of the wording of our mandate the appellant fears that the issues presented upon the set-off are likewise subject to re-trial and asks that such mandate be modified to clearly indicate that the new trial thereby ordered is limited to the issues joined on her claim alone.
This court said in Topp v. Standard Metal Co. (1911),47 Ind. App. 483, 94 N.E. 891: *Page 222
"As a general rule a motion for a new trial must be directed to the whole case. It is not generally proper to select isolated issues and assail them by motions for a new trial. Johnson v. McCulloch (1883), 89 Ind. 270; State, ex rel., v. Templin (1890), 122 Ind. 235. In cases, however, where the rights of the parties are several and distinct, or the issues are different and independent, a motion for a new trial may be directed to one of such independent issues. The causes of action set up in the several cross-complaints in this case present distinct and independent issues, and a motion for a new trial might be sustained as to one of such cross-complaints without in any way affecting judgments rendered on others. Elliott, App. Proc. § 844; First Nat. Bank v. Williams (1891), 126 Ind. 423; Garr, Scott Co. v. Shaffer (1894), 139 Ind. 191. In such a case, the motion should be for a new trial of the issues joined on the cross-complaint. Meyer v. Manhattan Life Ins. Co. (1896), 144 Ind. 439."
Again in Kessans v. Kessans (1915), 58 Ind. App. 437, 108 N.E. 380, we said:
"The errors assigned arise upon the court's action in overruling appellant's motion for a `new trial on the cross-complaint', and the grounds of this motion discussed are that the verdict is not sustained by sufficient evidence, and is contrary to law. As a general rule a new trial will only be granted as to the whole case, and will not be granted upon the issues arising on a cross-complaint, counterclaim, or set-off. Oglebay v. Todd (1906), 166 Ind. 250, 76 N.E. 238; Johnson v. McCulloch (1883), 89 Ind. 270; New Hampshire Fire Ins. Co. v. Wall (1905), 36 Ind. App. 238, 75 N.E. 668; Kahle v. Crown Oil Co. (1913), 180 Ind. 131, 100 N.E. 681. In some cases, where the issues arising on a cross-complaint are distinct and independent, a new trial will be granted on the cross-complaint. Topp v. Standard Metal Co. (1911), 47 Ind. App. 483, 94 N.E. 891. It would seem that one test to be applied in determining whether a new trial should be granted on a part of the issues, is whether the evidence to support the issues on which a new trial is sought, *Page 223 will support such issue independently of the issue presented by the original complaint. If so, then a new trial may be granted on such independent issue. But where the evidence necessary to support the issue presented by the one pleading must necessarily affect and relate to the issue presented by the other, then they are so interwoven and dependent one on the other that they can not be separated and a new trial can only be granted as to the whole case."
It will be noted from these decisions that where the issues are "different and independent" the party complaining should direct his motion for a new trial to such independent issues 10-12. as are decided against him. In the present instance the appellant's motion asks for a new trial of the whole case but on appeal she seeks to have the relief limited to the issues joined on her claim. Just what our jurisdiction in the premise may be has never been decided in Indiana but elsewhere the question seems to be well settled. We quote as follows from 3 Am. Jur., Appeal and Error, § 1226:
"It is now well established, notwithstanding doubt expressed in some earlier cases as to the common-law power of a reviewing court to limit issues when ordering a new trial, that when error exists as to only one or more issues and the judgment is in other respects free from error, a reviewing court may, when remanding the cause for a new trial, whether by the court or a jury, limit the new trial to the issues affected by the error whenever these issues are entirely distinct and separable from the matters involved in other issues and the trial can be had without danger of complication with other matters. But when it appears that the error did affect or may have affected all the issues, a complete new trial must be had."
In 5 C.J.S., Appeal and Error, § 1935, the rule is expressed thus: *Page 224
"Whether by reason of statutory provision or otherwise, it is generally held that an appellate court, on remanding a cause, may in its discretion either grant a complete new trial or restrict or limit the purpose of the proceedings or the issues to be tried in the lower court, according to which course is demanded by the circumstances or the ends of justice.
"Where the error in the trial relates only to a certain issue which is in no way dependent for its proper trial on certain other issues already satisfactorily tried and a partial new trial will not work injustice to any of the parties concerned, the cause may be remanded, on reversal, for the trial of the issue erroneously tried, and for that alone."
Restriction of the issues to be re-tried, however, must clearly be in the interests of justice or it will not be ordered.Murray v. Krenz (1920), 94 Conn. 503, 109 A. 859. With that principle in mind we have carefully examined the entire record in this case and are not satisfied that the issues joined on the appellant's claim can be re-tried alone without injustice to the appellee on the issues joined on the set-off. The appellant's claim is based on the promise to pay contained in a mortgage executed by the appellee's decedent. Although no effort is made to foreclose such mortgage the chattels described therein, all of which are represented as being located in the house known as 6803 East Washington Street, Indianapolis, Indiana, and as being the property of the appellee's decedent, are the same chattels the appellant claimed to be hers upon the trial of the set-off. The record affords no explanation of this incongruity and under the circumstances we are not prepared to say that the issues joined on the appellant's claim are so separate and independent of those joined on the set-off that we can order a new trial of the one issue without the possibility of injustice to the appellee. Our mandate *Page 225 in the decision of this case is therefore modified to read as follows:
Judgment against the appellant on her claim and against the appellee on her set-off is reversed with instructions to sustain appellant's motion for a new trial as to all issues joined in the case.
NOTE. — Reported in 71 N.E.2d 128.