Cocker v. Cocker

• Decision Date: 31 March 1874
• Citation: 56 Mo. 180
• Parties: CATHERINE H. COCKER, Appellant, v. JOHN COCKER, Respondent.
• Court: Missouri Supreme Court

56 Mo. 180

CATHERINE H. COCKER, Appellant,

v.JOHN COCKER, Respondent.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

Dryden & Dryden, for Appellant.

Voullaire & Sternberg, for Respondent.

VORIES, Judge, delivered the opinion of the court.

This action was brought by the plaintiff against the defendant in the St. Louis Circuit Court, to recover the amount purporting to be due on a promissory note executed by the defendant to the plaintiff. The defendant by his answer set up as a defense to the action, the allegation that the note had been executed without any good consideration, and also that it was barred by the statute of limitations. The plaintiff replied to the new matter in the answer, denying the same, and also setting up new matter in avoidance. The answer and reply are each very long and prolix in their averments; but for the purposes of a proper understanding of the case as presented in this court, it is not necessary that they should be further noticed.

In the Circuit Court at Special Term a jury was waived and a trial of the issues in the case was had before the court. The issues were found for the plaintiff and judgment rendered in her favor.

The defendant in due time filed his motion fora new trial. After this motion was filed and before it was heard or decided, the judge who tried the cause, (the late Judge Ewing), vacated his office by resignation, and the present incumbent, Judge Krum became his successor in office. The motion for a new trial set out as grounds of the motion that the finding and judgment of the court was against the evidence and against the weight of the evidence; that the court admitted improper evidence; that the court had improperly declared the law; and that the finding and judgment were not warranted by the law or evidence, and were excessive. This motion was afterwards called up for hearing before the present judge of the court, and was by him overruled.

The following facts appear from a bill of exceptions filed at the time the motion was overruled: “That before the motion for a new trial was disposed of, Judge Ewing, before whom this case was tried, vacated the bench without disposing of said motion for a new trial; that on the 18th day of January, 1873, the above motion for a new trial came on to be heard, Judge Krum the successor of Judge Ewing presiding, and not having heard the testimony and evidence of the case, and not being advised therein, and without passing upon the merits of said motion, and there being no certificate from Judge Ewing as to what the evidence on the trial was, and it being stated to the court by the respective counsel that they had not agreed as to what the evidence or testimony was, the court refused to grant a new trial and overruled the motion for a new trial, to which action of the court in refusing to grant a new trial, and in overruling said motion for a new trial, the defendant by his counsel...