Fitzroy v. People's Bank of Cardwell
| Decision Date | 21 May 1917 |
| Docket Number | No. 1911.,1911. |
| Parties | FITZROY v. PEOPLE'S BANK OF CARDWELL. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Butler County; J. P. Foard, Judge.
Action by D. R. Fitzroy against the People's Bank of Cardwell. There was judgment for plaintiff, and from an order sustaining plaintiff's motion for new trial, defendant appeals. Judgment affirmed.
John T. McKay, of Kennett, and Abington & Phillips, of Poplar Bluff, for appellant. Lee A. Hall, of St. Louis, and Orville Zimmerman, of Kennett, for respondent.
This is an appeal brought by the defendant from an order of the trial court sustaining a motion for a new trial. The record discloses that there was a trial to a jury and a verdict for the plaintiff and judgment rendered thereon. Both plaintiff and defendant filed motions for new trial, each assigning six or eight different reasons. The court overruled the defendant's motion, and sustained plaintiff's motion, for reasons stated in the order, and granted a new trial. Defendant appealed.
There are two reasons why the order of the trial court in sustaining the motion for new trial should be affirmed. One is that the defendant cannot be an aggrieved party, when the court did exactly what it was asking the court to do; and the other is that it will be estopped from taking a position in the appellate court that the trial court erred in making the order the defendant was asking it to make. This point has been recently passed upon by the Supreme Court in the case of Star Bottling Works v. Exposition Co., 240 Mo. 634, 144 S. W. 776, and we will pass the question by referring to that authority and to the case of Deiermann v. Bemis Bros. Bag Co., 144 Mo. App. 474, 129 S. W. 229, without in any way passing upon the questions raised in the briefs on the merits of the case or on the errors alleged.
The judgment is affirmed.
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