AUTHORITY OF JUSTICE OF THE PEACE TO GRANT A NEW TRIAL.

Court of Appeals for Lucas County.

#### Adolph Brand v. Michael Murray et al.

Decided, June 7, 1916.

*Justice of the Peace*— Exemptions *to the Overruling of*a *Motion for a New Trial Not Based on Statutory Grounds.*

The authority of a justice of the peace to grant a new trial is not limited to the grounds named in Section 10352, General Code, hut since the amendment in 1902 of Section 6565, Revised Statutes, as now contained in Section 10361, General Code, a justice of the peace may also grant a new trial on the grounds named in that section.

*C. S. Curtis,*for plaintiff in error.

*Lawton & Saalfield*and *J. I. O’Connor,*contra.

Chittenden, J.

Application for rehearing of motion to strike bill of exceptions from the files.

This cause is being considered on an application for rehearing of a motion to strike from the files the bill of exceptions for the reason that the same was not signed within the time required by statute. The cause was tried before a justice of the peace *303wbo rendered a decision and entered judgment on the 7th day of December, 1915. On the 10th day of December, 1915, a motion for a new trial was filed. The hearing on this inuiion was adjourned from time to time, and the motion was heard on December 20, 1915, and was overruled, exceptions noted and ten days allowed for the filing of a bill of exceptions. The bill of exceptions was signed and filed on December 29, 1915. The motion for a new trial was based upon several grounds, among others, that the judgment rendered is contrary to law, that it is not sustained 'by sufficient evidence, and because of error in the admission of evidence.

It is contended by defendants in error that the exceptions should have been prepared, allowed and signed within ten days from the entering of the judgment, and that the motion for a new trial filed by the defendant below, not being based upon statutory grounds, can not operate to extend the time for the signing of such bill of exceptions. It is contended that the authority of a justice of the peace to grant a new trial is limited by the terms of Section 10352, General Code, which, in substance, provides that a. new trial may be granted when the justice is satisfied that the verdict was obtained by fraud, partiality or undue means, and that the causes mentioned are the only grounds for a new trial, and apply only when the case is tried by .a jury.

Reliance is had upon the case of *Thompson*v. *Ackerman,*21 C. C., 740, and that decision does sustain the proposition contended for by defendants in error. That decision was rendered in 1901 when there were no grounds for a new trial except those, contained in Section 6560, Revised Statutes, now Section 10352, General Code. At the time of that decision Section 6565, Revised Statutes, now Sections 10360, 10361,10362 and 10363, General Code, was in the form found in-93 O. L., 104. Section 6565, Revised Statutes as there enacted, referred to no grounds for a new trial in addition or supplemental to Section 6560, Revised Statutes, and the same situation is true in relation to the decision of the Supreme Court in the *State*v. *Langenstroer,*67 O. S., 7, the facts in the latter case bringing it under the act found in 93 O. L., 104.

*304In 1902 Section 6565, Revised Statutes, was amended, and by the terms of the amendment additional grounds for a new trial were incorporated therein, as found in Section 10361, General Code, its provisions now 'being that if the "exception is to the decision of the court, on a motion to direct a non-suit or to arrest the testimony from the jury, or for a new trial because the verdict, .or if the jury- is waived, the finding of the court is against the law and the evidence, or on the admission or rejection of evidence, the party excepting musí reduce his exceptions to writing” and present them to the trial justice within the time limited by the same section (now Section 10360, General Code), which is within "ten days from the date of overruling the motion for a new trial, ’ ’ if such motion be made, etc. It will be seen that a radical change in the terms of Section 6565, R. S., was made by this amendment, and that the decisions cited by defendants in error were rendered with reference to the law as it stood before the amendment. The wording of the section as now found in the General Code is, we think, plain and unambiguous, and we hold that the bill of exceptions was filed within the time .provided by statute.

The application for rehearing will be denied.

Richards, J., and Kinkade, J., concur.