Doran v. Ross, Adm., 21195.

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Sperry
• Citation: 221 S.W.2d 756
• Parties: JAMES P. DORAN, APPELLANT, v. DOROTHY S. ROSS, ADMINISTRATRIX OF THE ESTATE OF RUBIN SPIVAK, DECEASED, RESPONDENT.
• Docket Number: No. 21195.,21195.
• Decision Date: 13 June 1949

221 S.W.2d 756 JAMES P. DORAN, APPELLANT,
v.
DOROTHY S. ROSS, ADMINISTRATRIX OF THE ESTATE OF RUBIN SPIVAK, DECEASED, RESPONDENT. No. 21195. Kansas City Court of Appeals. Missouri. Opinion delivered June 13, 1949.

Appeal from Circuit Court of Jackson County. — Hon. Thos. J. Seehorn, Judge.

AFFIRMED.

Walter W. Calvin for appellant.

(1) The trial court, in sustaining the defendant's motion to set aside the verdict, and to grant him a new trial in this cause, committed prejudicial, and reversible, error against the plaintiff herein. The matters and things set forth and alleged in paragraphs 3 and 4 of the defendant's motion for a new trial did not afford a sufficient legal basis for quashing the entire jury panel, or for challenging the array, as the same were not embodied in a proper motion, in writing, and presented to the court before the jury was sworn, or the trial begun, the court, in sustaining the defendant's motion for a new trial, for the reasons therein assigned, committed prejudicial and reversible error against the plaintiff. The grounds or reasons set forth and alleged in paragraphs 3 and 4, of the defendant's motion for a new trial herein, constituted but a futile attempt to challenge the array since they were wholly and legally insufficient for that purpose, the court, in sustaining the defendant's motion for a new trial, for the reasons therein assigned, committed prejudicial and reversible error against the plaintiff. The matters and things set forth and alleged in paragraphs 3 and 4, of the defendant's motion for a new trial herein, could not, legally and properly, have been presented, except when properly embodied in a challenge to the array, which could only have been interposed, in writing, and by a timely presentation thereof, the court could not, legally, consider the same, or, legally, predicate any ruling thereon; and, for that reason, the court, in sustaining the defendant's motion for a new trial, for the reasons therein assigned, committed prejudicial and reversible error against the plaintiff. Since the matters and things set forth and alleged in paragraphs 3 and 4, of the defendant's motion for a new trial were not in writing, and were not interposed before the jury was sworn, or the trial begun, they afforded no foundation, either in law or in fact, for the court's setting aside verdict and granting the defendant a new trial herein for that reason, the court, in sustaining the defendant's motion for a new trial, for the reasons therein assigned, committed prejudicial and reversible error against the plaintiff. State v. Brennan, 164 Mo. 487, 65 S.W. 325; State v. Church, 199 Mo. 605, 98 S.W. 16; State v. Belknap, (Mo.) 221 S.W. 39; State v. Garrett, 285 Mo. 279, 226 S.W. 4; State v. Vigus, (Mo.) 66 S.W. 2d 854; State v. McGee, 336 Mo. 1082, 83 S.W. 2d 98; State v. Darrow, (Mo.) 104 S.W. 2d 249; Massman v. Kansas City Public Service Co., 119 S.W. 2d 833; and, State v. Logan, 334 Mo. 351, 126 S.W. 2d 256, 122 A.L.R. 417. (2) The court had no legal right, power or authority to set aside the verdict, and to grant the defendant a new trial in this cause, because of any irregularities, which, allegedly, occurred, or were committed, in the impaneling of the jury on return day; and, its action, in sustaining the defendant's motion for a new trial, for the reason assigned, not only constituted prejudicial and reversible error, as against the plaintiff, but also constituted, and was, an arbitrary and capricious act on its part, and a gross abuse of its judicial discretion in the premises. Cases, supra.

W.H. Hoffstott, Tom Parrish and Morrison, Nugent, Berger, Hecker & Buck for respondent.

(1) The trial court properly granted defendant a new trial because the jury panel was not selected in accordance with the statutory requirements. Sec. 757, R.S. Mo., 1939 (Amended, Laws 1947, Vol. 1, p. 342); State v. Rouner, 333 Mo. 1236, 64 S.W. 2d 916 (1933); State v. Austin, 183 Mo. 478, 82 S.W. 5 (1904); Berry v. Trunk, 185 Mo. App. 495, 172 S.W. 629 (1915); State v. Clark, 256 S.W. 554 (Mo. App., 1923); State v. Weeden, 133 Mo. 70, 34 S.W. 473 (1896); Massman v. K.C. Pub. Serv. Co., 119 S.W. 2d 833 (Mo. Sup., 1938); Jerabek v. City of St. Joseph, 159 Mo. App. 505, 141 S.W. 456 (1911); People v. Labadie, 66 Mich. 702, 33 N.W. 806; Healy v. People, 177 Ill. 306, 52 N.E. 426; Jones v. State, 3 Blackf. (Ind.) 37. (2) Plaintiff failed to make a submissible case against defendant. Court should enter judgment for defendant, or, court may affirm the trial court upon the ground it should have sustained defendant's motion for a directed verdict. Milazzo v. Kansas City Gas Co., 180 S.W. 2d 1 (Mo. Sup., 1944); State ex rel. Gosselin v. Trimble, 328 Mo. 760, 41 S.W. 2d 801 (1931); Smothers v. Welch & Co. House Furnishing Co., 310 Mo. 144, 274 S.W. 678 (1925); Rohrmoser v. Household Finance Corp., 231 Mo. App. 1188, 86 S.W. 2d 103 (1935); Priest v. F.W. Woolworth Five & Ten Cent Store, 228 Mo. App. 23, 62 S.W. 2d 926 (1933); Peerless Fixture Co. v. Keitel,...