Joseph Hoover & Sons Co. v. Corbin & Bodine, Inc.

Opinion by Linn, J., Plaintiff sought compensation for goods lost in transit by defendant carrier, and has judgment on his verdict. Appellant contends it was entitled either (1) to judgment n. o. v. or (2) to a new trial. (1) The undertaking to carry was admitted. The defense was that the property was stolen. The jury found the loss occurred in circumstances constituting negligence, which, the record shows, was the single point contested at the trial; it was the duty of the jury to find the fact. Accordingly, neither binding instructions for appellant, nor subsequent judgment n. o. v. would have been proper. *169 (2) On the day judgment n. o. v. was refused, appellant withdrew its motion for a new trial. Two weeks later, judgment was entered on the verdict. Still later, at the same term, appellant filed what it called a petition ' for reargument, alleging the trial, the verdict and that motions for a new trial and for judgment n. o. v. had been dismissed; it averred that at the trial “no evidence or proof of damage was produced,” and asked the court “to grant a reargument in this case upon a motion for a new trial......” As the motion for a new trial had been withdrawn, the petition, of course, was not accurate; and as the plaintiff already had a judgment regularly entered on the verdict responsive to the issues made by the pleadings, he had a complete adjudication in the court below of the matters in suit, so that there was nothing to be reargued. Even if we consider the proceeding as one to open the judgment, the petition would be insufficient because it alleged no defense to the action nor stated what the value of the goods was. There was no abuse of discretion in dismissing that petition. Judgment affirmed.