McCord v. Doniphan Branch Railroad

This motion prays for alternative relief. We are asked either to tax the costs of this appeal against the appellant, or otherwise to permit the respondent to withdraw his remittitur, and remand the cause for a new trial.

If the question presented were one of first impression, We would permit a withdrawal of the remittitur, and modify the judgment by remanding the cause for a new trial.

The question, however, is not one of first impression. The supreme court has decided in a number' of cases that where the appellant succeeds in part in the appellate court, whether it be reducing the judgment in…