Fendler v. DeWald

• Decision Date: 29 May 1883
• Citation: 14 Mo.App. 60
• Parties: JOHN FENDLER ET AL., Respondents, v. OLIVER DEWALD, Appellant.
• Court: Missouri Court of Appeals

14 Mo.App. 60

JOHN FENDLER ET AL., Respondents,

v.OLIVER DEWALD, Appellant.

St. Louis Court of Appeals, Missouri.

May 29, 1883.

APPEAL from the St. Louis Circuit Court, HORNER, J.

Affirmed.

P. LEAHY, for the appellant.

O. G. HESS, for the respondents.

THOMPSON, J., delivered the opinion of the court.

This was an action on an account, commenced before a justice of the peace and tried anew in the Circuit Court. The evidence was quite conflicting, so much so as to lead to an unavoidable inference that some of the witnesses were guilty of perjury. The testimony of the plaintiff, Mrs. Fendler, and her witnesses, was sufficient to support the verdict which the jury rendered in her favor. The testimony of the defendant and his witnesses went equally to show that he owed her nothing. The court gave all the instructions which were asked by either party, and these instructions appear to have put the case to the jury in a manner free from objection.

The substantial ground on which a new trial is sought is, that during a recess of the court, while the cause was on trial, some of the jurors, who had remained in the court-room, “did converse with and listen to the statements of the witnesses for the plaintiff; * * * which said witnesses were not then on oath; * * * that the statements and conversations of said witnesses, so made and carried on in the presence and hearing of said jurors, were calculated to prejudice the rights of this defendant.” The affidavits, in support of this charge, are, all of them except one, the affidavits of the defendants and his witnesses, and there are counter-affidavits filed by the plaintiff and her witnesses. The single affidavit made by a person not a witness was that of the deputy sheriff, who had charge of the court-room at the time. He deposed that “three or four of the jurors; * * * during the recess of the court, and before the trial of the said cause was fully terminated, remained and listened to statements, discussions, and accusations of the plaintiff, Mary Fendler, and her sisters and witnesses, against defendant's witnesses in relation to the case on trial, * * * and so remained until separated by this affiant.”

The affidavits of the defendant's witnesses are to the effect that the plaintiff and her sisters, who were witnesses in her behalf, at the time in question, used loud, boisterous and insolent language towards the defendant and his witnesses, who had remained in the court-room, accusing them of having sworn falsely....