Blanchard v. Wolff

• Decision Date: 06 November 1878
• Citation: 6 Mo.App. 200
• Parties: CHARLES H. BLANCHARD, Respondent, v. ABRAHAM F. WOLFF, Appellant.
• Court: Missouri Court of Appeals

6 Mo.App. 200

CHARLES H. BLANCHARD, Respondent,

v.ABRAHAM F. WOLFF, Appellant.

St. Louis Court of Appeals, Missouri.

Nov. 6, 1878.

Where a new trial is improperly ordered, the party objecting may save his exception and stand upon his rights by refusing further to proceed in the trial court. Having done this, his objections against the order will be heard on appeal or writ of error.

APPEAL from St. Louis Circuit Court.

Reversed, and judgment.

MARSHALL & BARCLAY, for appellant, cited: Martin v. Henley, 13 Mo. 312; Norvell v. Porter, 62 Mo. 310; Brady v. Connelly, 52 Mo. 19; Carver v. Thornhill, 53 Mo. 283; Lancaster v. Insurance Co., 62 Mo. 127.

J. S. GARLAND, for respondent, cited: Helm v. Bassett, 9 Mo. 52; Brill v. Meek, 20 Mo. 358; Gilstrap v. Felts, 50 Mo. 428; Hill. on New Tr. 649.

LEWIS, P. J., delivered the opinion of the court.

This suit was instituted in November, 1872, for an alleged unlawful conversion of personal property. Issues were made up upon petition, answer, and reply; and the cause coming on for trial before a jury, the plaintiff, at the close of his testimony, took a nonsuit, with leave to move to set the same aside. The bill of exceptions states as follows: “The plaintiff, within three days after taking the nonsuit aforesaid, filed a motion to set the same aside and for a new trial; which motion the court thereafter overruled.” The motion is not set out, nor does any other entry relating to it appear in the bill of exceptions. The plaintiff appealed to General Term, where judgment of Special Term was reversed. The defendant thereupon appealed to the Court of Appeals, whose action on the case is reported in 1 Mo. App. 520. This court, upon an examination of the statute authorizing appeals from reversals by the General Term, found the appeal premature, and sent the case back to the Circuit Court for further proceedings and final judgment. The defendant, having duly saved his exceptions to the action of the General Term, refused further to appear in the Circuit Court. In May, 1877, an ex parte hearing was had in Special Term, when plaintiff obtained a judgment; from which the defendant has appealed to this court.

That the action of the General Term in reversing the judgment of Special Term was erroneous is not open to question. As an appellate tribunal, it had no authority to review the ruling of the court below upon a motion which did not appear in the bill of exceptions, and to which ruling no exception had been saved by the party appealing. This erroneous reversal was, in effect, the granting of a new trial. The question now to be determined is, whether the improper granting of a new trial can be assigned for error, on appeal or writ of error.

In Helm v. Bassett, 9 Mo. 52, Scott, J., said: “There is an obvious distinction between granting a new trial and the refusal of one. By granting a new trial the cause is kept open, another opportunity is afforded for an investigation of its merits, and the injury, if any, is that merely of delay; whereas, on the other hand, the refusal of a new trial precludes a party from all redress in future, and the injury committed is irreparable. The injury resulting from the granting a new trial is like that caused by allowing the continuance of a cause. The law has that degree of confidence in its own administration that it contemplates that he who is entitled to a verdict in a cause at one time will obtain it at another; and the contrary idea goes upon the supposition that a trial by jury is a game of chance, and he who is once successful has no assurance that at the next throw of the dice he may not prove altogether a loser. * * * If a new trial is granted in a cause, and then a second verdict, and the appellate court is entirely satisfied with it, although it may be of opinion that the inferior court improperly exercised its discretion in granting a second trial, yet, as that act has been the means of doing complete justice between the parties on the merits, why should it be objected to for error? * * * There is no error complained of in the proceedings on the last trial, but the record of it is only used as a means of correcting an alleged error committed on another occasion, which does not at all affect its justice or its merits.” We have copied thus at length because the language is not merely authoritative, but seems an admirable summary of all that can be said against the admissibility of appellate review of an order granting a new trial.

It must be observed, however, that in that case the plaintiff, who objected to the new trial, had gone into the second trial as fully as into the first. The parties had again met on an equal footing, and again contested all the matters in issue. It is by no means clear that the able reasoning of Judge Scott would have been applied, even by himself, to a case like the one before us.

In Johnson v. Strader, 3 Mo. 355, and in Hill v. Wil kins, 4 Mo. 86, it was held that the improper granting of a new trial was assignable for error. In Davis v. Davis, 8 Mo. 56, it was declared that if a party wished to avail himself of error committed in granting a new trial, “he should not have made defence in the new trial before the Circuit Court, but he should, after taking his exceptions, have abandoned the case at that point.” Said the court, further: “By going on to a second trial in the Circuit Court, he...