State Ex Rel. Jaster v. Kautz

Ohio Supreme Court

State Ex Rel. Jaster v. Kautz

2 N.E.2d 1, 131 Ohio St. 103, 131 Ohio St. (N.S.) 103, 5 Ohio Op. 445, 1936 Ohio LEXIS 328

CourtOhio Supreme Court

DecidedMay 6, 1936

Docket25861

StatusPublished

Cited by4 cases

This text of 2 N.E.2d 1 (State Ex Rel. Jaster v. Kautz) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State Ex Rel. Jaster v. Kautz, 2 N.E.2d 1, 131 Ohio St. 103, 131 Ohio St. (N.S.) 103, 5 Ohio Op. 445, 1936 Ohio LEXIS 328 (Ohio 1936).

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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, *Page 105 184 N.E. 289), to correct an erroneous judgment by appeal on questions of law. (State, ex rel. Schunk, v. Hamiltonet 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.

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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, *Page 105 184 N.E. 289), to correct an erroneous judgment by appeal on questions of law. (State, ex rel. Schunk, v. Hamiltonet 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.

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Bluebook (online)

2 N.E.2d 1, 131 Ohio St. 103, 131 Ohio St. (N.S.) 103, 5 Ohio Op. 445, 1936 Ohio LEXIS 328, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-jaster-v-kautz-ohio-1936.

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