Falloon v. Fenton
| Decision Date | 13 June 1914 |
| Citation | 167 S.W. 591,182 Mo.App. 93 |
| Parties | WILLIAM FALLOON, Respondent, v. SAMUEL FENTON, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Crawford County Circuit Court.--Hon. L. B. Woodside Judge.
AFFIRMED.
Judgment affirmed.
M. E Rhodes for appellant.
(1) If a petition states no cause of action, such question can be raised in the Appellate Court for the first time, and a judgment thereon should be reversed. McQuitty v White, 218 Mo. 586; Davis v. Jacksonville Line, 126 Mo. 69; Hoffman v. McCracken, 168 Mo. 343. (2) In granting or refusing new trials based upon the ground that the verdict is against the law and evidence, and against the weight of the evidence, the trial judge should endeavor to avoid giving effect to any decision which amounts to a failure on the part of the jury to award substantial justice. Sec. 308, Vol. I, Chamberlayne's Modern Law of Evidence. (3) When a verdict is clearly against the weight of the evidence, it is the duty of the Court to set it aside and order a new trial. This is an imperative duty and cannot be evaded on the theory that the jurors are the exclusive judges of questions of fact and the evidence can be weighed on appeal. 14 Am. and Eng. Ency. Pleading and Practice, 776; Price v. Evans, 49 Mo. 396; McKay v. Underwood, 47 Mo. 185; Iron Mountain Bank v. Armstrong, 92 Mo. 265; State v. Scott, 214 Mo. 261; Aultman Co. v. Organ, 149 Mo.App. 102; Bank v. Wood, 124 Mo. 72; Eidenmiller v. Kump, 61 Mo. 342. (4) Where an independent fact essential to the cause of action is omitted, the pleadings will be had on motion in arrest of judgment. 2 Am. and Eng. Ency. Pleading and Practice, p. 799, par. 2; Welch v. Bryan, 28 Mo. 30; Frazer v. Roberts, 32 Mo. 457; Newman v. Perrill, 73 Ind. 153; Crawford v. Crockett, 55 Ind. 220.
Roy Clymer and John W. Booth for respondent.
(1) In proceedings before justices of the peace any statement filed before the justice is sufficient if it apprises the opposite party of the nature of the action, and is sufficient to bar another action for the same cause. Printing Co. v. Belcher, 127 Mo.App. 133; Frederick v. Bruckner, 124 Mo.App. 31; Dalton v. United Railways Co., 134 Mo.App. 392. (2) The complaint filed with the justice of the peace in the case at bar alleges facts which are sufficient to constitute a good common law right of action, though it does not state sufficient facts to authorize a recovery of treble damages under the statute (Sec. 4572, R. S. of 1899--Sec. 5448, R. S. of 1909 of Mo.) Hewitt v. Harvey, 46 Mo. 368; O'Bannon v. Railroad, 111 Mo.App. 202; Pitt v. Daniel, 82 Mo.App. 168; O'Bannon v. Railway Co., 106 Mo.App. 316; Lumber Co. v. Craig, 112 Mo.App. 454. (3) There was ample evidence in support of respondent's complaint to authorize the Court to submit the case to the jury, and to support the verdict of the jury. McKay v. Underwood, 47 Mo. 185; Kinlen v. Railroad, 216 Mo. 145, l. c. 176; Bank v. Rogers, 123 Mo.App. 569; State v. Scott, 214 Mo. 257, l. c. 261. (4) It is only where there is no substantial evidence to support a verdict that an appellate court will reverse a judgment for want of evidence to support the verdict. State v. Scott, 214 Mo. 257, l. c. 261. (5) It is well settled that a motion for a new trial must so definitely set out the reasons therefor as to direct the attention of the trial court to the precise error of which complaint is made. And, the simple assertion that the verdict of the jury is against the law as in this case does not indicate specifically wherein it infringes upon the law. See State v. Scott, 214 Mo. 257, 261.
On April 18, 1910, plaintiff (respondent) recovered a judgment against the defendant (appellant) in a justice's court in Crawford county for the sum of one dollar on a cause of action stated as follows: "Plaintiff states that on or about the 18th day of April, 1909, and at various and divers other times since, the defendant, without leave, wrongfully entered on the east one-half of lot 6, of the northwest quarter of section 4, township 39, range 2, west of Crawford county, Missouri, of which the plaintiff was then the legal owner and then and there cut timber to the value of fifty dollars and carried it away, by which acts and doings of defendant plaintiff was damaged to the amount of one hundred and twenty-five dollars, for which plaintiff asks judgment under section 4572, Revised Statutes 1899."
From that judgment the defendant appealed to the circuit court where after two mistrials the plaintiff again recovered judgment for one dollar, and it is from this that defendant appeals.
In the motion for a new trial the only ground stated is as follows: "Because the verdict of the jury is not supported by the law and the evidence and the weight of the evidence."
There is substantial competent evidence in the record before us tending to support the following statement of facts Plaintiff and defendant are adjoining landowners, their farms being divided by a township line, plaintiff owning the land north and defendant owning the land south of such line. The defendant cut trees which the evidence shows were worth from one to five dollars in value. There is no controversy thus far. The plaintiff contends that such trees were south of the line and therefore on his land, and the defendant claims that his acts were done north of the line and therefore on his land. The plaintiff showed by John Smith, the county surveyor at the time of the trial, that he had run the line in question several times and that the trees cut were south of the line which he established as the township line, the same being the boundary line between the parties. Other witnesses swore that the timber was cut south of the line established by John Smith. This witness (John Smith) also testified that one Griffith, a civil engineer, in company with him run the line, which survey is referred to in the evidence as the Griffith survey, Griffith using the instrument and the witness making the notes, and that the Griffith line at the northwest corner of plaintiff's land was several feet south of the John Smith line, which variation was accounted for by them as due to local attractions varying the needle. However, the defendant admits that he cut some timber south of the Griffith line. The defendant, in order to establish that the timber cut was north of the line, introduced one G. L. W. Smith, an ex-county surveyor who had made several surveys of this line, the first one having been made twenty-four years before the trial, and the others after the controversy between the parties had waxed warm. His testimony tended to show that the township line, which is the dividing line, is several feet south of the place where the timber was cut. The defendant swore that he helped (carried the chain) when three old surveys were made many years before the time of the trial, the first one being...
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