Short answer. The court may either enter a judgment or final order as to the issues not being retried, or stay the enforcement of that judgment until after the new trial on the remaining issues has been completed. Rule 37, Section 8 gives the court that choice.
What the law says
When less than all of the issues are ordered retried, the court may either enter a judgment or final order as to the rest, or stay the enforcement of such judgment or final order until after the new trial.
Rule 37, Section 8 — Effect of order for partial new trial. Read the full provision →
Two options when less than all the issues are retried
When less than all of the issues in a case are ordered retried under the preceding section of the Rule, Section 8 gives the court two alternatives. It may enter a judgment or final order as to the issues that are not being retried, letting that part of the case conclude on its own timeline, or it may instead stay the enforcement of that judgment or final order until after the new trial on the remaining issues has actually taken place. Either way, the section confirms that a partial new trial order does not automatically freeze the entire case in place while the retrial proceeds.
What each option accomplishes
Choosing to enter judgment on the settled issues lets the party who prevailed on those points obtain relief without having to wait for the retried issues to be resolved. Choosing instead to stay enforcement holds off on giving effect to even the settled portion, avoiding the complications that can come from enforcing part of a judgment while another part of the same case is still being retried. Which path better serves the parties will depend heavily on how the settled and retried issues relate to each other in the particular case, which is part of why the Rule leaves the decision to the court's assessment rather than fixing one answer for every situation.
A discretionary choice left to the court
The Rule does not fix which of the two options applies in a given case; it leaves that decision to the court, based on the circumstances at hand, such as how closely the retried issues are connected to, or might practically affect, the parts of the judgment that are not being retried. A court might, for instance, prefer to enter judgment on the settled issues where they are truly independent, but stay enforcement where the retried issues could still change the overall outcome. A party who wants one option over the other should raise that preference with the court when the partial new trial is ordered, rather than assuming the court will pick the option that party favors.
Related provisions
- Rule 37, Section 8 — Effect of order for partial new trial
- Rule 37, Section 7 — Partial new trial or reconsideration
- Rule 37, Section 9 — Remedy against order denying a motion for new trial or reconsideration