Bell v. Bell

• Decision Date: 23 September 1929
• Docket Number: No. 4639.,4639.
• Citation: 20 S.W.2d 289
• Parties: BELL v. BELL et al.
• Court: Missouri Court of Appeals

20 S.W.2d 289

BELL v. BELL et al.

No. 4639.

Springfield Court of Appeals. Missouri.

September 23, 1929.

Appeal from Circuit Court, Bollinger County; Peter H. Huck, Judge.

Action by Mollie Bell against George R. Bell and another. From an order sustaining defendants' motion for a new trial after a verdict for plaintiff, plaintiff appeals. Affirmed.

Russell L. Dearmont, of Cape Girardeau, and W. C. Russell, of Marble Hill, for appellant.

William M. Morgan and Homer F. Williams, both of Marble Hill, and Davis & Damron, of Fredericktown, for respondents.

BAILEY, J.

This is an appeal from an order sustaining a motion for new trial. The suit was instituted by plaintiff as sole legatee under the will of her husband, J. Frank Bell, deceased, on two promissory notes executed and delivered by defendants to plaintiff's said deceased husband in his lifetime. The defendant George R. Bell and J. Frank Bell were brothers. It appears that they owned a farm and some personal property as partners or tenants in common, and, on or about August 19, 1919, defendants purchased the interest of the said J. Frank Bell in said farm, for an agreed consideration of $5,700.

As part of the consideration, four promissory notes (including the two notes in suit) were shown to have been executed and delivered by defendants, aggregating the sum of $3,590. The evidence fails to indicate in what manner the balance of $2,160 was paid or was to be paid. Defendants were, of course, disqualified as witnesses to the transaction. Certain credits were shown on the notes about which there is no controversy. The verdict of the jury was for plaintiff in the sum of $1,251.85. Defendants filed a timely motion for new trial on the 12th day of March, 1926. The cause was continued to the September term, 1926, of the Bollinger county circuit court, at which term defendants filed what is termed a supplementary motion for new trial supported by affidavits setting forth newly discovered evidence. The cause was again continued, and finally the motion for new trial was sustained on March 23, 1927. At plaintiff's request, the trial court stated his reasons for sustaining the motion in writing, as follows: "After a careful consideration of all the reasons set out in the original and supplementary motions for a new trial the Court sustained the motion, and, in compliance with the request of plaintiff, the Court gives as a special reason the fact that it had an irresistible disposition to sustain the motion for a new trial." (Italics ours.)

It is urged by plaintiff that the action of the trial court in specifying the ground upon which the new trial was granted did, in effect, overrule other grounds assigned in the motion for new trial, and that therefore, this court should not consider such other grounds, citing Ziegler v. Ry., 220 S. W. 1016, by the St. Louis Court of Appeals. Our Supreme Court has ruled that, "If the motion for a new trial contains several grounds, and the court sustains it as to one ground, without passing upon the others, that we will not overturn its decision, even if the ground on which it was sustained was not well taken, provided the record contains substantial evidence from which this court can reach the conclusion that the motion for a new trial ought to have been sustained upon some other ground alleged therein." Craton v. Huntzinger, 187 S. W. 48, loc. cit. 53.

In the case at bar, however, this point does not seem to be involved, for the reason the language used by the trial court fails to assign any definite reason for sustaining the ...