Skaggs v. Given

• Citation: 29 Mo.App. 612
• Parties: WILLIAM SKAGGS, Respondent, v. B. F. GIVEN, Appellant.
• Decision Date: 19 March 1888
• Court: Court of Appeals of Kansas

29 Mo.App. 612

WILLIAM SKAGGS, Respondent, v. B. F. GIVEN, Appellant.

Court of Appeals of Missouri, Kansas City.

March 19, 1888

APPEAL from Maries Circuit Court, HON. A. J. SEAY, Judge.

Affirmed.

The case is stated in the opinion.

W. S POPE, for the appellant.

To sustain a reversal in this case the court is cited to the following authorities: Rudolph v. Landwerlin, 92 Ind. 38; School v. Shaw, 100 Ind. 271; Baker v City, 62 Wis. 146; Swineford v. Baker, 44 Wis 291; Wolfe v. Minnis, 74 Ala. 389; Tucker v. Henniker, 41 N.H. 322; State v. Smith, 75 N.C. 307; Dennis v. Phillips, 63 N.C. 56; Coble v. Coble, 79 N.C. 590; Hennies v. Vogel, 7 Cent. Law Jour. 18; Scripps v. Riley, 35 Mich. 386; Holliday v. Jackson, 21 Mo.App. 669; Hayne on New Trial and Appeal, 154; Powers v. Mitchell, 77 Me. 361.

EDWARDS & DAVISON, for the respondent.

I. The instruction given the jury in reference to the setoff pleaded by defendant is correct. Rev. Stat., sec. 2919. The appellant admits in his statement filed here that the evidence in regard to the assignment " was contradictory." This being so, the court will presume the verdict was correct. Porth v. Gilbert, 85 Mo. 125.

II. Appellate courts will not weigh the evidence in law cases, where there is any evidence at all to sustain the verdict. Gambs v. Ins. Co., 50 Mo. 44; Brown v. Railroad, 23 Mo.App. 209; Hurlburt v. Jenkins, 22 Mo.App. 572. And the numerous decisions of this and the Supreme Court on this question.

III. The remarks of the counsel in this case amounted to nothing. The remarks, in one instance, were rebuked by the court and this, under the decisions of our court, cured the error. As to the other remarks objected to by appellant in his statement, no exceptions were made to them in the court below, nor was the judge asked to interfere, or to instruct the jury to disregard the remarks and rebuke the counsel, and he cannot be heard to complain now. Goldman v. Wolff, 6 Mo.App. 490; Ryan v. Kelly, 9 Mo.App. 592; Walker v. Martin, 10 Mo.App. 589; Blackman v. Cowan, 11 Mo.App. 589; State v. Hamilton, 55 Mo. 520. In this case the record shows that after the counsel had the first time made improper remarks the court's attention was called to it and the judge rebuked him. This cured the error. Ryan v. Wolff, 9 Mo.App. 590. The other remarks complained of were not called to the attention of the court, the record showing that " the judge was off the bench in one corner of the courthouse reading." According to the authority referred to by appellant, and the only one referred to by him from this state, he cannot be heard to complain now, not having directed the attention of the court to it at the time. Authorities above cited.

IV. Where the court is satisfied, from the whole case, that the judgment is for the right party, it will not reverse a cause for the improper remarks of counsel. Lloyd v. Railroad, 53 Mo. 599.

ELLISON J.

Plaintiff sued the defendant before a justice of the peace of Maries county on an account. On return day, the defendant filed as an offset an account larger than plaintiff's, which had been assigned to him by one M. Given. The cause was appealed to the circuit court. The evidence was conflicting in regard to the merits of the claim and offset. The material point was, as to whether the account filed by appellant as an offset was assigned to him before or after the commencement of the suit in the justice's court. Upon this point the evidence was likewise contradictory.

The court, against the objection of appellant, gave, at the request of respondent, the following instruction:

" The court instructs the jury that if they believe, from the evidence, that the offset in defendant's counter-claim was assigned to defendant after the filing of plaintiff's cause of action in the justice's court, then they will disregard said offset in arriving at a verdict."

This was the only instruction given in the case, and the case was then argued. In his opening speech before the jury, counsel for plaintiff called their attention to the fact that plaintiff had recovered judgment before the justice for more than twenty dollars; that Given was the appellant and had brought the suit to this court. Appellant's counsel objected to the statement. The judge rebuked him for the language, and told him he had no right to make such a statement to the jury. In his closing argument to the jury plaintiff's counsel made use of the following language, while the judge was off the bench and in one corner of the courthouse reading: " This case was tried before 'Squire Ammermann, and he gave judgment against the defendant for more than twenty dollars, and he has appealed the case here. Again, he appealed to the jury to affirm what had been done in 'Squire Ammermann's court, and not to set aside 'Squire Ammermann's verdict." That...