Green v. First Nat. Bank of Kansas City

• Decision Date: 15 June 1942
• Citation: 173 S.W.2d 763,236 Mo.App. 1257
• Parties: GUY GREEN, GUARDIAN, RESPONDENT, v. FIRST NATIONAL BANK OF KANSAS CITY, APPELLANT
• Court: Kansas Court of Appeals

173 S.W.2d 763

236 Mo.App. 1257

GUY GREEN, GUARDIAN, RESPONDENT, v. FIRST NATIONAL BANK OF KANSAS CITY, APPELLANT

Court of Appeals of Missouri, Kansas City

June 15, 1942

236 Mo.App. 1257 at 1263.

Original Opinion of June 15, 1942, Reported at: 236 Mo.App. 1257.

Motion overruled.

OPINION

ON MOTION FOR REHEARING.

CAVE J.

In its motion for rehearing, the defendant contends that we have misconstrued the record in holding that the trial court did not assign in its order any specific ground for sustaining plaintiff's motion for new trial. It is defendant's position that the statement of the court, which is set out in full in our original opinion herein, was intended and considered by the trial court to be a part of the order sustaining the motion, and again directs our attention to the statement of the court which appears in the bill of exceptions and in its abstract of the record. Among other things, defendant's abstract of the record proper, after reciting the verdict and judgment and the filing of the motion for new trial, states:

"Thereafter and to-wit, on the 6th day of December, 1941, the same being during the regular November Term, 1941, of said Court, the plaintiff's motion for a new trial was taken up and submitted to the Court and by the Court sustained and a new trial granted, to which action and ruling of the Court in sustaining said motion and in granting and allowing to the plaintiff a new trial, the defendant then and there duly excepted at the time and still excepts. The order and judgment sustaining the plaintiff's motion and granting a new trial is, in words and figures, as follows:

"'Now on this day plaintiff's motion for a new trial is by the Court sustained and excepted to.'

"And at the same time and on the same day, and on said 6th day of December, 1941, and during the regular November Term, 1941, of said Court, the following proceedings were had and the following order of the Court entered of record as a part of and in connection with the order sustaining plaintiff's motion for a new trial and in granting to the plaintiff a new trial."

Then follows the statement of the court and the attorneys, which is set out in full in our original opinion and will not be again copied.

We held in our original opinion, and see no reason to change our view, that the statement of the court and the attorneys was not a part of the order sustaining the motion for new trial, but was an oral statement by the court of the reasons for its action. It must be kept in mind that the decisions excepted to and appealed from is the order granting a new trial, and it is the correctness of that ruling, and not the reason for it, that the appellate court is called upon to review. [State ex rel. v. Thomas, 245 Mo. 65, l. c. 75; Cole v. St. Louis-San Francisco Ry. Co., 332 Mo. 999, 61 S.W.2d 344, l. c. 1010.]

The order made by the court sustaining the ...