Statement of the Case.

necessary: Raudebaugh v. Shelley, 6 Ohio St., 307; Haynes v. Haynes, 33 Ohio St., 598, and Keyl et al. v. Feuchter, supra.

The charge of the court, in respect to the execution of this will is, therefore, not erroneous. The charge of the court is challenged in other respects, but, upon examination of the whole charge, we find no prejudicial error therein.

The judgment of the court of appeals is affirmed.

Judgment affirmed.

MATTHIAS, JOHNSON and MERRELL, JJ., concur. NICHOLS, C. J., not participating.

THE STATE, EX REL. THE OHIO ELECTRIC RAILWAY CO., V. THE PUBLIC UTILITIES COMMISSION.

Mandamus — Public utilities commission — Refusal to restore schedule-Rejected after complaint and municipal rate-ordinance filed-Appeal to commission from rate-ordinanceFailure to prosecute error to supreme court-Section 544, General Code.

(No. 16526-Decided June 8, 1920.)

IN MANDAMUS.

Messrs. Cable & Cable, for relator.

Mr. John G. Price, attorney general, and Mr. E. E. Corn, for respondent.

Mr. H. E. Garling, city solicitor, for city of Lima.

BY THE COURT.

Opinion Per Curiam.

This action in mandamus was instituted in this court and the issue for determination is presented by demurrer to the answer of the respondent, The Public Utilities Commission.

The relator, The Ohio Electric Railway Company, seeks a peremptory writ of mandamus commanding the Public Utilities Commission to restore to its files a schedule of rates for electric light and power in the city of Lima, filed with the commission by the relator December 1, 1919. This schedule carried an increase over the rates theretofore in force, and by its terms was to become effective January 15, 1920.

The Public Utilities Commission rejected said schedule and ordered it stricken from its files, for the reason, as stated by the commission, that on January 13, 1920, and before the effective date of the proposed new schedule, the city of Lima filed a protest and complaint against such schedule and attached thereto a copy of an ordinance passed by the council of the city of Lima, January 5, 1920, declared therein to be an emergency ordinance, which ordinance fixed other and lower rates than those carried in the proposed schedule, the rates fixed in said ordinance being identical with the rates theretofore in force, evidenced by the schedule previously filed with the relator known as P. U. C. O. No. 2, in which protest the city of Lima alleged that the proposed schedule was in conflict with the rates fixed in said ordinance, whereupon respondent determined that it was without authority to continue upon its files to become effective as a valid and legal schedule of rates on January 15, 1920,

Opinion Per Curiam.

the proposed schedule filed December 1, 1919, known as P. U. C. O. No. 3, which schedule the commission asserts never became effective and that the relator acquired no rights thereunder.

It is further disclosed that in 1909 the relator entered into a contract with the city of Lima, under which the company undertook to furnish electric current for lighting the streets of the city of Lima, and for light and power purposes to consumers in that city. This contract expired in February, 1919. The relator continued to supply current at the rate fixed in that contract, and thereafter, December 1, 1919, filed the schedule now in question. On January 19, 1920, relator filed its complaint in writing with the Public Utilities Commission, appealing from the rates prescribed by the ordinance passed January 7, 1920.

The relator attempts in this action to make the contention that no emergency in fact existed which authorized the passage of said ordinance as an emergency measure and consequently that it could not become effective until thirty days after its passage, which would be February 6, 1920.

But the order of the Public Utilities Commission complained of is clearly a final order and falls within the provisions of Section 544, General Code, by virtue of which provisions a final order made by the commission may be reversed, vacated or modified by the supreme court on a petition in error, if, upon a consideration of the record, such court is of the opinion that such order is unlawful and unreasonable. This section of the public utilities act therefore provides a clear adequate legal rem

Statement of the Case.

edy, for which a proceeding in mandamus cannot be substituted. The demurrer to the answer of the respondent is therefore overruled and the petition of the relator dismissed.

Writ refused.

NICHOLS, C. J., JONES, MATTHIAS, JOHNSON, WANAMAKER, ROBINSON and MERRELL, JJ., con

cur.

THE CLEVELAND RAILWAY Co. v. TRENDEL, ETC.

Court of appeals — Jurisdiction

Weight of evidence-Section 11577, General Code - Trial court grants new trial- But refuses same after retrial- Errors assigned for review.

1. The right of a court of appeals to reverse the judgment of a trial court is predicated upon its finding error in the proceedings of such court.

2. A trial court having granted one new trial upon the weight of the evidence is prohibited by Section 11577, General Code, from granting a second new trial upon the same ground.

3. Where the trial court has granted one new trial upon the weight of the evidence, and upon a second trial has overruled a motion for a new trial upon the same ground, for the reason that the court is prohibited by Section 11577, General Code, from granting the second new trial upon that ground, and error is prosecuted to the court of appeals, that court is without power to weigh the evidence and determine whether the verdict was in fact against the weight of the evidence, since there could be no error in that respect by the trial court.

(No. 16544-Decided June 8, 1920.)

ERROR to the Court of Appeals of Cuyahoga county.

Statement of the Case.

This action was brought by the defendant in error to recover damages for injuries sustained in an automobile and street car collision, and was tried in the court of common pleas of Cuyahoga county, resulting in a verdict in favor of the defendant in error. Upon motion for a new trial the verdict was set aside by the court of common pleas upon the ground that the verdict was not sustained by sufficient evidence. The cause was tried a second time in the court of common pleas, and verdict again returned in favor of the defendant in error. A motion for a new trial upon the weight of the evidence was filed and overruled, and judgment entered. Error was prosecuted to the court of appeals of Cuyahoga county. The ground of reversal there urged was that the verdict and judgment were against the weight of the evidence and not sustained by sufficient evidence. The court of appeals affirmed the judgment of the court of common pleas upon the ground that the trial court had once exercised the right to set aside the verdict as against the weight of the evidence, and since the trial court was precluded by Section 11577, General Code, from again setting aside the verdict upon the weight of the evidence there was no error in the overruling by the trial court of the motion for a new trial.

Messrs. Squire, Sanders & Dempsey, for plaintiff in error.

Messrs. Payer, Winch, Minshall & Karch, for defendant in error.