Dodd v. Guiseffi

• Citation: 100 Mo. App. 311,73 S.W. 304
• Parties: DODD et al. v. GUISEFFI.
• Decision Date: 17 March 1903
• Court: Court of Appeal of Missouri (US)

73 S.W. 304

100 Mo. App. 311

DODD et al. v. GUISEFFI.

Court of Appeals at St. Louis, Missouri.

March 17, 1903.

APPEAL—VERDICT—CONCLUSIVENESS—SECOND NEW TRIAL—REVIEW OF EVIDENCE—BILL OF EXCEPTIONS—EXTENSION OF TIME—JUDICIAL DISCRETION — PRESUMPTION OF PROPER EXERCISE.

1. Where a verdict is based partly on oral evidence, in which there is a conflict, it cannot be disturbed on appeal, even though the evidence in its support may be incredible.

2. Under Rev. St. 1899, § 801, forbidding a second new trial except where the jury erred in matter of law or were guilty of misbehavior, a verdict on a second trial cannot be disturbed because against the weight of the evidence.

3. Facts put in issue by the pleadings cannot be assumed in the instructions, thus justifying a withdrawal of a case from the jury, or a disturbance of their verdict, even though the facts assumed are evidenced by uncontradicted oral testimony.

4. Under the statute authorizing the trial court, in its discretion, to extend the time for filing the bill of exceptions, it will be presumed that its discretion was properly exercised.

Appeal from St. Louis Circuit Court; John A. Talty, Judge.

Action by D. McTarish Dodd and others against Gioroliano Guiseffi. From a judgment for defendant, plaintiffs appeal. Affirmed.

Holmes, Ten Broeck & Spooner, for appellants. Rowe & Moore, for respondent.

REYBURN, J.

An attachment suit was brought in the circuit court of the city of St. Louis by appellants against respondent, assigning among other statutory grounds for attachment that the defendant had fraudulently concealed, removed, or disposed of his property or effects so as to hinder or delay his creditors. A trial was had on defendant's plea in abatement, and the jury returned a verdict in his favor, which, upon plaintiffs' motion for new trial, was set aside by the court, and the case again proceeded to trial on the plea in abatement with the same result; nine jurors concurring in the last verdict. At the second trial a great volume of testimony was introduced, tending to support the various grounds for attachment, and contained in the lengthy record filed in this court, which, however, has not been abstracted; and appellants are content to narrow and confine their reliance for reversal in this court to the presentation and consideration of the single proposition that the evidence offered by plaintiffs was not only uncontradicted upon the particular ground of attachment (that the defendant had fraudulently concealed, removed, or disposed of his property or effects so as to hinder or delay his creditors), but that it also was fully established by the testimony of the defendant himself, and that therefore, as a matter of law, plaintiffs were entitled upon this ground to a verdict, and that the verdict of the jury, ignoring the undisputed evidence upon this ground, had nothing to support it, and plaintiffs were entitled to a new trial, regardless of the number of trials preceding. There was evidence proving that defendant had given a chattel mortgage upon his property to Aimee D. Emory to secure notes for the total sum of $1,000, which defendant testified he repaid in installments, making the final payment at a late hour on January 9, 1896. The mortgage remained after such payment not released, and defendant explains that this was due to the fact that the mortgage had been stolen from his desk in his absence by the mortgagee after its payment, and by her placed on record. But however this may...