Bailey v. Coe

• Decision Date: 07 March 1904
• Citation: 79 S.W. 1158,106 Mo.App. 653
• Parties: ELIDA G. BAILEY, Defendant in Error, v. BERTHA E. COE et vir, Plaintiffs in Error
• Court: Kansas Court of Appeals

79 S.W. 1158

106 Mo.App. 653

ELIDA G. BAILEY, Defendant in Error, v. BERTHA E. COE et vir, Plaintiffs in Error

Court of Appeals of Missouri, Kansas City

March 7, 1904

Appeal from Jackson Circuit Court.--Hon. W. B. Teasdale, Judge.

AFFIRMED.

Case affirmed.

Marcy K. Brown for plaintiffs in error.

(1) Where, from any cause, another judge than the trial judge comes to pass upon a motion for new trial, pending and undecided, a new trial should be granted. Especially is this so, where, as in the case at bar, one of the reasons urged for a new trial, viz.: "that the verdict is against the weight of the evidence," invokes the discretionary powers of the trial court. Woolfolk v. Tate, 25 Mo 597; Cocker v. Cocker, 56 Mo. 181; State v Boogher, 3 Mo.App. 442; Witthouse v. Railroad, 64 Mo. 525; Mill Co. v. Sugg, 142 Mo. 368; Patterson v. Yancey, 97 Mo.App. 681. "Such conditions necessarily work a new trial, as a matter of law." Sahlien v. Gunn, 43 Mo.App. 315; Voullaire v. Voullaire, 45 Mo. 602.

Muckle Hayward & McLane for defendants in error.

(1) Judge Teasdale, as the successor of the trial judge, had authority in law to sustain or overrule the motions for new trial and in arrest. R. S. 1889, sec. 2171; R. S. 1899, sec 731; State ex rel. v. Perkins, 139 Mo. 106; Richardson v. Ass'n, 156 Mo. 407; State ex rel. v. Railway, 164 Mo. 208; Glaves v. Wood, 78 Mo.App. 351. (2) Plaintiffs in error have not set out any of the evidence introduced, nor any of the court's rulings during the trial of the cause. In the absence of any showing of error prejudicial to the substantial rights of plaintiffs in error, upon the merits of the case, the appellate court will not interfere with the discretion of the lower court in the determination of the motion for a new trial. R. S. 1899, sec. 865; Berkson v. Railway, 144 Mo. 211; Baughman v. Fulton, 139 Mo. 557.

OPINION

BROADDUS, J.

The case was tried by a jury before Hon. Roland Hughes, a member of the bar who had previously thereto been elected as special judge to hold court during the absence of Judge E. P. Gates, the regular judge. The trial was concluded on May 8, 1902, and resulted in a verdict for plaintiff. On the succeeding day defendants filed their motion for a new trial and in arrest of judgment. In a few days thereafter Judge Hughes declined to further hold said court, whereupon Hon. John L. Peak was duly elected as special judge in the continued absence of Judge Gates. For some reason, however, the motions were not disposed of until January 4, 1903, when they came up for hearing before Judge W. B. Teasdale, the successor in office of Judge Gates. Judge Teasdale overruled said motions and defendants appealed. When the motions were being heard the transcript of the evidence was not produced by the parties. The only error presented by the appeal is, that the court committed error in not sustaining said motion and granting defendants a new trial. The contention of the plaintiffs in error is, therefore, that as the case was not tried before Judge Teasdale he had no power to pass upon the motion and that it was incumbent upon him, as a matter of law, to sustain the motions and grant a new trial.

In Cocker v. Cocker, 56 Mo. 180, the court held: "The action of a judge in overruling a motion for new trial, etc., on the ground that the case having been heard before his predecessor he was ignorant of its merits, is error." The ruling in the case of Woolfolk v. Tate, 25 Mo. 597, was approved. In the latter case the court used the following language: "It is better to allow a new trial where the court can not for any cause consider the merits of an application for that purpose than to refuse it, for denying the motion without giving the party the benefit of being heard, or of having his reasons considered, irreparable injury may be done, while, on the other hand, the prevailing party in the verdict will only suffer by delay and will generally secure another verdict if he is entitled to it." In St. Francis Mill Co. v. Sugg, 142 Mo. 364, 44 S.W. 249, the rule in the two cases mentioned was reaffirmed.

In the revision of 1889 the following section was made a part of the code of civil procedure: "Section 2171. In any case where the judge who heard the cause shall go out of office before signing the bill of exceptions, such bill if agreed to be true by the parties to the action or their attorneys, or shown to the judge to be correct, shall be signed by the succeeding or acting judge of the court where the case was heard."

In State ex rel. v. Perkins, 139 Mo. 106, 40 S.W. 650, the proceeding was that of mandamus to compel Judge Perkins to pass upon the motions for new trial, etc., which had been filed during the term of Judge Crow, who had tried the cause but whose term of office had expired, and who had been succeeded by Judge Perkins. The court in construing said section held: "This statute in the light of prior practice must be regarded as a remedial one and therefore to be liberally construed with a view to effectuate its manifest purpose. Whenever a power is granted by the statute, the grant of such power carries with it by necessary implication everything necessary to make such grant effectual." And...