#### Hanna, Appellant, vs. Chicago, Milwaukee & St. Paul Railway Company and another, Respondents.

*March 20*

April *9, 1914.*

*Appealable orders: Appeal from Milwaukee civil court: New*trial, *when to he granted: Excessive damages: Reduction: Option t<y take smaller sum.*

1. An order of the circuit court reversing a judgment of the Milwaukee civil court and granting a new trial in the circuit court is appealable under sec. 3069, Stats.

2. Under ch. 320, Laws of 1913, the circuit court can reverse a judgment of the civil court upon appeal and grant a new trial in the circuit court only when by reason of “manifest prejudicial error, . . . any party thereto has not had a fair trial thereof in the civil court,” and then only “where substantial justice cannot otherwise be done and the rights of the parties other*627wise preserved and protected.” It was error, therefore, to grant a new trial absolutely on the ground of excessive damages.

3. Where damages allowed in the civil court are manifestly excessive, the circuit court upon appeal may, if they were allowed by the civil judge, reduce the amount of the recovery, or, if the excessive allowance was by a jury in the civil court, may make an alternative order giving respondent an option to avoid a new trial by accepting a smaller sum.

Appeal from an order of the circuit court for Milwaukee county: J. 0. Ludwig, Circuit Judge.

*Reversed.*

The appeal is from an order granting.a new trial in a case appealed to the circuit court from the civil court of Milwaukee county.

Eor the appellant there was a brief by *faliclcsman, Gold & ^Corrigan*and *Henry Mahoney,*and oral' argument by W. *D.'*fCorrigan. ....

Eor the respondents there was a brief by *G. H. Van Al-■stine, H. J. Killilea,*and *R. M. Trump,*and oral argument by *Mr. Trump.*

Timlin, J.

Sec. 3069, Stats., provides that an order made by the circuit court granting a new trial may be carried by appeal to the supreme court. This provision long antedates the establishment of the civil court in Milwaukee, and no «doubt originally- applied only to orders made by the circuit •court in cases tried by that court. ,

By ch. 549, Laws of 1909, the civil court of Milwaukee county is established with powers and jurisdiction therein specified. Provision is made in sub. 1 -of sec. 28 of that chapter for an appeal to the circuit court for Milwaukee county from any final judgment of said civil court or from any order of the civil court from which an appeal to the supreme court might be taken if such order were made by a circuit court. We are unable to limit the scope of these words found in .sec. 3069 merely on the ground that this statute existed before *628tbe civil court was established and before tbe circuit court was given tbe power in tbis case exercised. We must bold tbe order appealable; altbougb a case is presented where tbe legislature might properly cut off an appeal and allow a review on appeal from tbe final judgment only.

Ob. 320, Laws of 1913, following sec. 28, cb. 549, Laws of 1909, provides that every judgment of tbe civil court shall be affirmed or modified and affirmed as so modified by tbe circuit court upon appeal, unless, by reason of manifest prejudicial error in tbe trial of tbe action in which such judgment was rendered, any party thereto has not bad a fair trial thereof in tbe civil court; but in any such case of mistrial, where substantial justice cannot otherwise be done and tbe rights of tbe parties otherwise preserved and protected, tbe judgment of tbe civil court therein shall be reversed, and tbe circuit court shall order tbe action tried in said circuit court in tbe same manner as if originally brought there, except, etc.

It is quite apparent that reversing a judgment of tbe civil court .and ordering a new trial absolutely on tbe ground of excessive damages is in violation of tbis express statute. Eor the judgment is not to be reversed and a new trial ordered even when tbe grave errors described in tbis statute have occurred, except when substantial justice cannot otherwise be done and tbe rights of tbe parties cannot otherwise be preserved. But in all cases of excessive allowance of damages by tbe civil judge, tbe circuit judge, if warranted by tbe evidence, may reduce tbe amount of recovery, and in all cases of excessive allowance of damages by a jury in the civil court tbe circuit court may make tbe alternative order described in *Rueping v. C. & N. W. R. Co.*123 Wis. 319, 101 N. W. 710; *Heimlich v. Tabor,*123 Wis. 565, 102 N. W. 10; *Beach v. Bird &*W. *L. Co.*135 Wis. 550, 116 N. W. 245; *Secard v. Rhinelander L. Co.*147 Wis. 614, 133 N. W. 45.

Tbis might end the case and is also a valuable right of tbe respondent in that court, giving him tbe option of ending tbe litigation then and there, and it obviates tbe necessity of a *629new trial in ease tbe order is accepted by either party. Therefore, by following the cases above cited substantial justice may be done without compelling a new trial, consequently the circuit court is to follow this course. The order here appealed from was therefore in violation'.of statute and must be reversed. In all cases where the amount of damages awarded by the judge of the civil court is up fof review in the circuit court, the circuit court is not to disturb the award unless there is manifest error. If the circuit court has acted thereon, this court will sustain the ruling of the circuit court whenever that can be done upon the evidence. There seems to be an opinion prevalent that the statute in question enlarges the power of the circuit court to reverse judgments of the civil court on appeal. We understand the statute restricts such power in a considerable degree. That is, not only must there be error discovered, but that error must be manifest — that is, clearly apparent, — it must also be prejudicial to the party appealing, and it must also have deprived him- of a fair trial. Even then such error is to be corrected in some other way than by granting a new trial except in those cases in which substantial justice cannot otherwise he accomplished.

*By the Gourt.-*— Order reversed, and the cause remanded for further proceedings according to law.