Salem-Bedford Stone Co. v. Hobbs

Roby, J.

— This case has been twice appealed to this court and once to the Supreme Court. Salem-Bedford Stone Co. v. Hobbs, 11 Ind. App. 27 ; Salem-Bedford Stone Co. v. Hobbs, 144 Ind. 146 ; Hobbs v. Salem-Bedford Stone Co., 22 Ind. App. 436 .

Upon the last trial appellant recovered judgment upon interrogatories and their answers returned by the jury with a general verdict for appellee, which was by this court reversed. Hobbs v. Salem-Bedford Stone Co., supra. The trial court, when the cause was returned to it, rendered judgment upon the general verdict in conformance to' the mandate. When this court held that appellant was not entitled to judgment notwithstanding the general verdict, it necesr sarily held that appellee was entitled to judgment thereon. This appeal is taken from the judgment so rendered.

After the jury had returned its verdict appellant filed two motions (1) for judgment notwithstanding the general verdict, (2) for a new trial. The former motion was sustained, and no ruling was made upon the latter since it could not be entitled to a favorable ruling upon both motions. Shoner. v. Pennsylvania Co., 130 Ind. 170 .

After the case was remanded, appellant insisted that its motion for a new trial should be ruled upon presumably in its own favor. The court ignored the motion, and the *606 claim now is that, having filed such motion seasonably, appellant was entitled to a ruling thereon before judgment against it.

Lawsuits are not tried by instalments. "When the appeal was taken by Hobbs from the judgment against him the entire cause was transferred to this court. Appellant had no occasion for a new trial. If it had desired a new trial it should have pressed that motion, and had it secured a favorable ruling thereon no one would have suspected that the motion for judgment was not waived. Having elected to take judgment, it thereby placed itself in the same relation to its other motion.

When this case was here last appellant argued that the appeal was improperly taken from the judgment in its favor because the motion for a new trial had not been ruled upon by the lower court. The anomalous position occupied by one who having obtained the ultimate object of its endeavor, namely, judgment in its favor, sought to defeat his adversary’s appeal therefrom because in addition to judgment he was not also granted a new trial, was allowed to pass without comment. A writ of certiorari was had, however, to bring that motion in the record and it needs no argument to show that the entire case was before the court. When under such circumstances a judgment is reversed, the further proceeding is prescribed by the statute. “When the judgment is reversed, in whole or in part, the Supreme Court shall remand the cause to the court below, with instructions for a new trial, when the justice of the case requires it; but if no new trial is required, with particular instructions relative to the judgment to be rendered and all modifications thereof.” §672 Burns 1901. This court not having found that the purpose of justice required a new trial, it follows that the attempt to have two appeals is not effective.

The verdict was returned. March 9,1898. Judgment September 6, 1899. Interest was included in the judgment from the date of the verdict. This, was wrong. It would *607 compel appellant to pay interest on interest from judgment until payment. A seasonable motion was made to modify the judgment by striking out the amount of interest included therein. This motion should have been sustained. §7044 Burns 1901.

Cause remanded, with instructions to modify the judgment by reducing it to $3,500, the same to bear interest at six per cent, from the date of verdict, and the judgment thus modified is affirmed. Costs of this appeal to be taxed to appellee.