Bradley-Metcalf Co. v. Tootle-Campbell Dry Goods Co.

• Decision Date: 05 November 1917
• Docket Number: No. 12578.,12578.
• Citation: 198 S.W. 84
• Parties: BRADLEY-METCALF CO. v. TOOTLE-CAMPBELL DRY GOODS CO.
• Court: Missouri Court of Appeals

198 S.W. 84

BRADLEY-METCALF CO. v. TOOTLE-CAMPBELL DRY GOODS CO.

No. 12578.

Kansas City Court of Appeals. Missouri.

November 5, 1917.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

"Not to be officially published."

Action by the Bradley-Metcalf Company against the Tootle-Campbell Dry Goods Company. From an order granting new trial after judgment for plaintiff, plaintiff appeals. Affirmed.

See, also, 180 S. W. 389.

Spencer & Landis, of St. Joseph, for appellant. R. A. Brown, of St. Joseph, for respondent.

ELLISON, P. J.

Plaintiff brought an action against defendant and obtained a judgment therein, from which defendant appealed to this court, where such judgment was reversed, and the cause remanded for a new trial. Plaintiff again recovered judgment, and defendant filed a motion for new trial, which was sustained by the circuit court, and plaintiff appealed to this court from that order.

It appears that the court granted the new trial on the ground of error in refusing defendant's instruction No. 4. The motion for new trial is not set out in the bill of exceptions. Though the court might not have been justified in finding error was committed in refusing that instruction, yet the new trial may have been properly granted on account of other errors assigned in the motion, and defendant had a right to rely upon such other errors set up in the motion. It was therefore plaintiff's duty to set it up in the bill of exceptions.

But, aside from this, plaintiff did not accept to the action of the court in sustaining the motion for new trial, which precludes us from examining into the matter of error assigned.

We must affirm the order granting the new trial. All concur.