Adair County v. Urban

Decision Date12 April 1954
Docket NumberNo. 43498,43498
Citation268 S.W.2d 801,364 Mo. 746
PartiesADAIR COUNTY v. URBAN et al.
CourtMissouri Supreme Court

Robert S. McKenzie, Stubbs, McKenzie, Williams, Merrick & Gibson, Kansas City, for appellants.

W. C. Frank, Pros. Atty., A. D. Campbell, P. J. Fowler, E. M. Jayne, Kirksville, for respondent.

CONKLING, Chief Justice.

This action was brought by Adair County, Missouri, as plaintiff, against the defendants, William Urban, Jr., a contractor, and The Travelers Indemnity Company, the surety on Urban's performance bond, for damages for the alleged breach of Urban's contract to erect a bridge for the County across the Chariton River at Yarrow, Missouri. The action seeks damages of $20,000. We herein continue to denominate the parties as plaintiff and defendants.

The first trial of the case resulted in a verdict for plaintiff for $5,000. The County's motion for new trial, filed after that first verdict, was sustained on the sole ground that the sum awarded as damages was inadequate. From the order granting that new trial defendants appealed. The trial court's judgment and order granting that new trial was affirmed by this Court and the cause was remanded. The issue before us on that first appeal was whether plaintiff made a case for the jury. We held that plaintiff made a jury case. Adair County v. Urban, Mo.Sup., 250 S.W.2d 493.

When the cause again came on in the circuit court of Adair County, the defendant Urban moved for a change of venue of the sole ground that plaintiff had an undue influence over the mind of the judge who was alleged to be prejudiced. When the motion for change of venue came on to be considered and ruled, the judge of the circuit court of Adair County, Honorable Tom B. Brown, disqualified himself to further hear the cause and requested Honorable Walter A. Higbee, Judge of the Thirty-seventh Judicial Circuit, to sit in Adair County to hear and try the cause. When the cause came on regularly for trial in Adair County before Judge Higbee as special judge and a jury the second trial of the case resulted on September 22, 1952, in a judgment in favor of the county in the sum of $4,000. Judgment for that amount was entered accordingly.

Defendants did not file a motion for new trial, or any other after-trial motion. The plaintiff, however, filed a motion for new trial 'in so far only as to the amount of damages sustained by plaintiff,' was concerned contending again that the verdict of $4,000 was inadequate, and, in the alternative, plaintiff filed also a separate motion for new trial of all the issues in the case. The grounds of the latter motion are later noticed herein.

The above motions were set for hearing on October 10, 1952. Defendants' counsel had notice that the above motions filed by plaintiff were so set for hearing but did not appear in court on that date. On October 10, 1952, and within thirty days of the entry of the judgment, the trial court considered and overruled the above alternative motions filed by plaintiff, and thereupon, of the court's own motion, entered the following order:

'Order Setting Aside Verdict. Acting by authority and in accordance with the provisions of Section 510.370, the court, on its own motion, doth hereby set aside the verdict of the jury returned in the above numbered case and the judgment entered thereon for the reason that, in the opinion of the court, the motion for change of venue filed by the defendant, William Urban, Jr., on August 23, 1952, divested the Circuit Court of Adair County, Missouri, of jurisdiction to further consider and try said cause.'

Defendants have appealed from the trial court's above quoted order the effect of which was to grant a third trial of the case. This appeal has not come to us upon a full transcript of the record, or upon the merits, but upon an agreed 'Statement Of The Case As Transcript On Appeal,' Section 512.120 RSMo 1949, V.A.M.S. It is therein stipulated that upon this appeal the points to be relied on by the appellants are: (1) that Urban's above motion for change of venue did not divest the circuit court of Adair County of jurisdiction of the cause; (2) that the above quoted order setting aside the judgment was without notice to defendants and was therefore void, and (3) that if the motion for change of venue divested the circuit court of Adair County of jurisdiction of the cause, that the court's failure to send the cause to another circuit was an error of which plaintiff cannot now complain. Those are the points which were briefed and argued by defendants when this cause was in Division 2 of this Court. In Division 2 plaintiff contended (and now contends) that defendants were not aggrieved by the above quoted order of the court entered on October 10, 1952. Division 2 transferred this cause to Court en Banc. Defendants filed, in Court en Banc, an additional brief in the cause, and now contend that (1) they are 'aggrieved' and are therefore entitled to appeal from the order of the trial court setting aside the jury's verdict and the judgment and granting plaintiff a new trial, (2) that the filing of the above motion for change of venue did not divest the Adair County circuit court of jurisdiction of the cause, and that Judge Higbee was without authority to set aside the verdict and judgment upon the ground stated in the order of October 10 1952, (3) that the order of October 10, 1952, was void because defendants had no opportunity to be heard by the court with respect to the entry of such an order.

We first consider the validity of the reason assigned by Judge Higbee as the basis for his order entered on October 10, 1952, i. e., that the motion for a change of venue divested the circuit court of Adair County of jurisdiction of this cause. Did the allegation of the motion for change of venue on the sole ground that plaintiff had an undue influence over the mind of the judge and that because thereof the judge was prejudiced, divest the circuit court of Adair County of jurisdiction? Did such allegation divest the circuit court of jurisdiction, or did it divest only the judge of that circuit court of power to proceed? In Section 15 of Article V of the Constitution of 1945, V.A.M.S., it is provided that, 'Any circuit judge may sit in any other circuit at the request of a judge thereof.' Where, as here, the sole ground of the motion for change of venue is the allegation of a litigant that the judge of the court is prejudiced, it is recognized that the above self-enforcing constitutional section saves the litigants 'the annoyance, delay and expense attending a trial in another circuit,' and empowers the regular judge of a circuit to request another circuit judge to come in and hear the cause. Pogue v. Swink, Mo.Sup., 261 S.W.2d 40. Clearly the affidavit of prejudice filed against the judge of the circuit court of Adair County only, and not against the inhabitants of that county, did not divest the court 'of jurisdiction to further consider and try the cause' and the judge of that court properly requested the judge of another circuit, Judge Higbee, to sit in Adair County and try the cause. State v. Emrich, 361 Mo. 922, 237 S.W2d 169(1), Hayes v. Hayes, Mo.Sup., 252 S.W.2d 323(17), State ex rel. Book v. Goodman, Judge, Mo.Sup., 263 S.W.2d 409, 412.

It may be here observed that the trial court overruled both of plaintiff's motions. In so doing the court denied plaintiff a third trial of this case on the following asserted grounds stated in the motions, that (1) the $4,000 damages awarded by the jury were inadequate and against greater weight of the evidence; (2) the verdict was the result of misunderstanding or misconception or prejudice on the part of the jury; (3) erroneous or conflicting or confusing instructions were given; (4) the court erred in accepting the jury's verdict; (5) the verdict was against the weight of the evidence, and (6) the court erred in not permitting plaintiff to offer more instructions. The new trial having been granted within the thirty days following the judgment, the court could have set aside the judgment for any legal reason for which a new trial may be granted, Section 510.330, whether such legal reason be contained within either of the written motions or not. But here the court did not set aside the judgment on any ground stated in either motion, nor was it set aside upon any valid legal ground. The assignments contained within the written motions were overruled. The reason assigned in the order setting aside the judgment and therefore granting the new trial was not a legal reason. The trial court therefore erred in setting aside the verdict and judgment in awarding the new third trial.

We must conclude therefore that the circuit court of Adair County was not divested of jurisdiction to try and determine the cause, that the reason assigned by Judge Higbee in his order of October 10, 1952, granting the new trial was not a valid legal reason, that the new trial was not validly ordered therefor, and the court erred in entering the order of October 10, 1952.

We come now to a consideration of whether defendants could appeal from the above order of October 10, 1952, setting aside the verdict and judgment rendered on September 22, 1952.

Plaintiff contends that defendants are not aggrieved by the order setting aside the instant verdict and judgment. The effect of that order was to grant plaintiff a third trial of the cause. An appeal may be taken from an order the effect of which is to grant a new trial. Plaintiff argues that since the order of October 10, 1952, setting aside the verdict and judgment vacated a judgment against defendants and relieved defendants of any immediate liability from the second trial judgment that the defendants are not presently aggrieved adversely in their legal rights by this particular judgment in their pecuniary or property rights or in their interests. We examine that contention in the light of all the facts.

It...

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9 cases
  • Kirst v. Clarkson Const. Co.
    • United States
    • Missouri Court of Appeals
    • October 12, 1965
    ... ... Sec. 512.020] and may maintain this appeal. Adair County ... Page 490 ... v. Urban, 364 Mo. 746, 268 S.W.2d 801, 804-805(4); Quinn v. St. Louis ... ...
  • State ex rel. Creamer v. Blair, 44234
    • United States
    • Missouri Supreme Court
    • July 12, 1954
    ...pointing to this result are State v. Scott, 359 Mo. 631, 223 S.W.2d 453; Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323; and Adair County v. Urban, Mo.Sup., 268 S.W.2d 801. When the affidavit of prejudice was filed against Judge Allison, he should at once have either requested the judge of ano......
  • Quinn v. St. Louis Public Service Co.
    • United States
    • Missouri Supreme Court
    • December 8, 1958
    ...granting a new trial from which both defendants could appeal since they were aggrieved thereby. Section 512.020; Adair County v. Urban, 364 Mo. 746, 268 S.W.2d 801, 804; Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W.2d 693, 695, 34 A.L.R.2d Since the respondent has not shown t......
  • Fields v. Henrich
    • United States
    • Missouri Court of Appeals
    • May 6, 2003
    ...new trial was an order which the defendant did not seek, the defendant is aggrieved and can appeal. Id. See also Adair County v. Urban, 364 Mo. 746, 268 S.W.2d 801, 805 (1954). That is not the case here, however. Contrary to the Henriches' claim on appeal, their after-trial motions clearly ......
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