Opinion
No. 25861
Decided May 6, 1936.
Mandamus — Writ denied where remedy at law adequate to review erroneous judgment — Granting second new trial in same case on weight of evidence — Section 11577, General Code — Appropriation of property for state highway.
IN MANDAMUS.
Mr. John W. Bricker, attorney general, Mr. J.A. Godown and Mr. Thos. M. Miller, for relator.
Mr. W.C. Shepherd and Mr. P.P. Boli, for respondent.
This cause came on to be heard upon the petition for a writ of mandamus, the answer and the demurrer thereto, and was argued by counsel.
In substance relator, Director of Highways of the state of Ohio, alleges that he commenced a proceeding in the Common Pleas Court of Butler county to appropriate certain property for state highway purposes, that a trial was had, that the jury awarded $2,200 to the property owners for lands taken and damage to the residue, that respondent judge granted a motion for a new trial upon the ground that the verdict was against the weight of the evidence, and that after a second trial the jury awarded the property owners $2,000.
Relator pleads that respondent is about to grant a motion for a second new trial on the same ground, and contends that a new trial is prohibited by Section 11577, General Code, which provides that a court can grant only one new trial on the weight of the evidence against the same party in the same case.
Relator prays a writ of mandamus to issue commanding the respondent to overrule a motion for a new trial.
Respondent's answer denies that a motion for new trial has been granted on the weight of the evidence, and pleads that such motion is governed by subdivision 5 of Section 11576, General Code, which authorizes granting a new trial where the action is for "the injury or detention of property, error in the amount of recovery," which is a separate and distinct ground for a new trial and is not limited by Section 11577, General Code.
On consideration whereof it is ordered and adjudged that the demurrer to the answer be overruled and a writ of mandamus be, and the same hereby is, denied.
Mandamus is not available where there is a plain and adequate remedy in the ordinary course of law ( State, ex rel. Bassichis, v. Zangerle, County Aud., 126 Ohio St. 118, 184 N.E. 289), to correct an erroneous judgment by appeal on questions of law. ( State, ex rel. Schunk, v. Hamilton et al., Judges, 127 Ohio St. 555, 190 N.E. 199.)
Writ denied.
WEYGANDT, C.J., STEPHENSON, JONES, MATTHIAS, DAY and ZIMMERMAN, JJ., concur.
WILLIAMS, J., dissents on authority of State, ex rel. Hiett, v. Court of Common Pleas of Hardin County, 102 Ohio St. 40, 130 N.E. 36.