Dickmann v. Hespos

• Decision Date: 20 July 1909
• Citation: 121 S.W. 325,141 Mo. App. 119
• Parties: DICKMANN v. HESPOS.
• Court: Missouri Court of Appeals

121 S.W. 325

141 Mo. App. 119

DICKMANN v. HESPOS.

St. Louis Court of Appeals. Missouri.

July 20, 1909.

1. APPEAL AND ERROR (§ 933) — PRESUMPTION.

Every presumption is to be indulged in favor of an order granting a new trial, without the ground therefor being assigned of record as directed by Rev. St. 1899, § 801 (Ann. St. 1906, p. 764), so that, being authorized on any of the grounds of the motion, it will be sustained.

2. APPEAL AND ERROR (§ 933) — REVIEW — ORDER FOR NEW TRIAL.

There being substantial evidence to support a theory of the case contrary to the verdict, the order granting a new trial generally, and so presumptively on the ground of the motion that the verdict was against the weight of evidence, will be sustained.

Appeal from St. Louis Circuit Court; Jas. E. Withrow, Judge.

Action by Joseph F. Dickmann against Louis H. Hespos. From an order granting a new trial, plaintiff appeals. Affirmed.

Edward N. Robinson and James C. Shaner, for appellant. Sterling P. Bond, for respondent.

NORTONI, J.

In this action plaintiff, a real estate agent, seeks to recover commissions alleged to have accrued to him on account of real estate sold. On a trial before the jury in the circuit court, plaintiff recovered. Afterwards the court sustained defendant's motion and granted a new trial. Plaintiff prosecutes the appeal from the order of the court granting the new trial.

The evidence is more or less conflicting on the material issues involved. Indeed, there is a substantial proof in the record tending to support the defendant's theory that the plaintiff has no claim whatever against him. Although our statute (section 801, Rev. St. 1899 [Ann. St. 1906, p. 764]) directs the court to enter of record the grounds on which every new trial is granted, this rule was not observed in the present instance. The fact is, the court merely sustained defendant's motion to that effect and granted a new trial thereon. For aught we know, it was of opinion that each and every ground assigned in the motion therefor was well taken. It is the rule, where the appeal is from an order granting a new trial, and the court has sustained a motion therefor and granted a new trial without assigning a reason of record, to indulge every presumption in favor of the action of the court in that behalf. Therefore, if the action of the court in granting a new trial may be sustained upon any of the grounds alleged in the motion, the judgment should not be reversed. First Nat. Bank v. Wood, 124 Mo. 72, 27 S. W. 554; Hewitt v. Steele, 118 Mo. 463, 24 S. W. 440. Among others, one of the grounds set forth in the motion for new trial, and upon which the new trial was urged, is that "because the verdict is against the weight of the evidence." Now, by sustaining this motion and granting the new trial thereon, without assigning any special reason therefor, the trial court affirmed that in its opinion the verdict of the jury was against the weight of the evidence in the case. The law affixes the duty upon the trial court to supervise the...