Callison v. Dads

• Decision Date: 05 May 1919
• Docket Number: No. 12663.,12663.
• Parties: CALLISON v. BADS et al.
• Court: Missouri Court of Appeals

211 S.W. 715

CALLISON v. BADS et al.

No. 12663.

Kansas City Court of Appeals. Missouri.

May 5, 1919.

Appeal from Circuit Court, Daviess County; Arch B. Davis, Judge.

"Not to be officially published."

Action by George B. Callison, executor of Rebecca J. Callison, deceased, against Henry L. Dads and another. Judgment for plaintiff, and, from an order granting a motion for a new trial, the plaintiff appeals. Reversed and remanded, with directions.

Nat G. Cruzen, of Gallatin, and J. W. Peery, of Albany, for appellant.

A. G. Knight and Dudley, Selby & Brandom, all of Gallatin, and J. M. Davis & Sons, of Chillicothe, for respondents.

BLAND, J.

On November 1, 1892, the deceased, Rebecca J. Wilson, loaned her daughter, Mabel C. Eads, and her daughter's husband, Henry L. Eads, defendants herein, $300, for which defendants gave her the note sued upon in this case. There was evidence tending to show various payments made by the defendant Henry L. Eads upon the note; that deceased had repeatedly declared the note had been paid; and that she had tried to find it in order to destroy it or turn it over to the defendants. There were two witnesses who testified that at the time the box in which the deceased had her papers was opened Mrs. Eads made the remark: "Well, we will pay ours." "'We will pay our note." There was evidence that Mrs. Bunker and Mrs. Buzard, Mr. and Mrs. Dads, and their daughter were present at the time of this conversation.

The trial resulted in a verdict and judgment in favor of plaintiff. In due time defendants filed a motion for a new trial, the fourteenth ground of which alleged that the testimony above quoted "was a surprise to the defendant; that such testimony is untrue; that the defendants had no means at hand to controvert or disprove such testimony"; that since the trial "defendants have interviewed the other parties who were present when such statements are said to have been made"; that "in support hereof the affidavit of Annie Buzard and Susan Bunker, who were present, * * * to the effect that no such words were spoken on that occasion," will be filed. "And by reason of the unexpected character of said testimony and the surprise occasioned thereby to these defendants and the untruthfulness of said testimony, * * * these defendants move and pray the court to grant them a new trial." The motion concluded by alleging that the testimony of these two witnesses could be produced at the next trial; "that it was not owing to want of diligence defendants did not learn of such testimony sooner for the reason defendants first learned plaintiff claimed such statement was made when witness Callison and his wife testified on the stand, and it was then impossible to ascertain or obtain the testimony of said witnesses Buzard and Bunker on the trial of the cause.

The court sustained the motion for a new trial and gave the following reason for so doing:

"Defendants' motion for a new trial is taken up and considered by the court and by the court sustained, for the reason that the court believes that defendants are entitled to have the testimony of Susan F. Bunker and Annie M. Buzard, that the same is material evidence in this cause, and that the failure to have their testimony was through no lack of diligence on the part of defendants to have their testimony at the trial."

It is apparent from the reason assigned by the court in sustaining the motion for a new trial that he sustained it on the ground of newly discovered evidence. Plaintiff claims that the...