Christesen v. Prewett
| Decision Date | 21 December 1928 |
| Docket Number | No. 4480.,4480. |
| Parties | CHRISTESEN v. PREWETT. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Pulaski County; W. E. Barton, Judge.
Action by C. F. Christesen against B. H. Prewett. Appealed from justice court to circuit court, where plaintiff recovered judgment. Defendant's motion for new trial was sustained, and plaintiff appeals. Affirmed.
J. R. Kirkham, of Dixon, Eldredge & Bell, of Waynesville, and Leslie B. Hutchison, of Vienna, for appellant.
Lorts & Breuer, of Rolla, for respondent.
This case originated in justice court and reached the circuit court by appeal. The action was brought to recover the value of certain sheep belonging to plaintiff which, it is alleged, were killed by a dog belonging to defendant. At the trial in circuit court plaintiff recovered. A motion for new trial was filed by defendant and sustained. Plaintiff appealed from the order sustaining defendant's motion for new trial.
The motion for new trial was sustained upon two grounds: First, that the verdict was against the weight of the evidence; second, on account of surprise to defendant during the trial by certain testimony on the part of plaintiff which we do not deem it necessary to set out.
The statute, section 1453, Stat. 1919, authorizes the trial court to set aside a verdict on account of surprise to a party by something that may occur during the progress of the trial, but our courts have uniformly held that if a party be surprised by something that occurs at the trial, he must call the court's attention to the fact at the time it occurs, and cannot proceed with the trial and take the chances of an adverse verdict and then raise the question of surprise for the first time in a motion for new trial. Bragg v. City of Moberly, 17 Mo. App. 221, 227; Byrd v. Vanderburgh, 168 Mo. App. 112, 120, 151 S. W. 184; State v. Henson, 290 Mo. 238, 247, 234 S. W. 832; Oncken v. Ehrler (Mo. App.) 222 S. W. 1045, 1047.
The defendant in this case did not raise the question of surprise until he filed a motion for new trial. That came too late, and the trial court was not authorized to grant a new trial upon that ground.
The other ground upon which the court sustained the motion for new trial, to wit, that the verdict was against the weight of the evidence, raises a question which the appellate courts always approach with care and caution. The rule in this state is that when the trial court sets aside a verdict on the ground that it is against the weight of the evidence, "his action in so doing will not be reviewed except...
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