Harris v. McQuay

• Decision Date: 20 June 1922
• Docket Number: No. 17104.,17104.
• Citation: 242 S.W. 1011
• Parties: HARRIS v. McQUAY at al.
• Court: Missouri Court of Appeals

242 S.W. 1011

HARRIS v. McQUAY at al.

No. 17104.

St. Louis Court of Appeals. Missouri.

June 20, 1922.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

"Not to be officially published."

Action by C. G. Harris against L. E. Mc-Quay and another. From an order sustaining the motion of defendant McQuay for a new trial, after verdict for plaintiff, plaintiff appeals. Affirmed, and cause remanded for new trial.

P. S. Terry, of Festus, for appellant.

Judson, Green & Henry, of St. Louis, for respondents.

NIPPER, C.

This suit originated In the circuit court of Jefferson county, Mo., and is an action for damages. The petition alleges that, on the 7th day of November, 1917, plaintiff and defendants made and entered into an agreement, in which plaintiff traded to defendants one Cadillac automobile and $1,000 in cash and promissory notes, and defendants transferred to plaintiff one Moon automobile; that defendants warranted and guaranteed the Moon automobile to be in first-class condition, with clear cylinders, and suitable for plaintiff's business as a doctor. It is alleged that defendants failed to perform their part of the agreement, in that the Moon automobile was not in first-class condition, was not suitable for plaintiff's business as a doctor, and many other defects were charged with respect to the Moon am tomobile.

The defendant Miller filed no answer. Defendant McQuay filed a plea to the jurisdiction, coupled with an answer to the merits. It is set out in statement of counsel here that defendant McQuay secured a continuance of said cause from time to time, but the record before us makes no such disclosures.

Plaintiff is a resident of Jefferson county, and testified to the facts alleged in the petition. A bill of sale was given by Miller to plaintiff for the Moon automobile, signed by McQuay. Plaintiff made a check payable to L. E. McQuay, in payment of the difference between the notes and the Cadillac car. Defendant McQuay is a resident of the city of St. Louis, and summons was served upon him there. Evidence was submitted by both plaintiff and defendant McQuay, on the merits of the case, and the same was submitted to a jury under instructions requested by both parties. Plaintiff recovered judgment for the sum of $1,000. Defendant McQuay filed a motion for new trial, which was sustained by the court without stating the grounds which were set out in the motion upon which the new trial was granted, as required by section 1454, R. S. 1919. Plaintiff appealed from the order sustaining defendant Mc-Quay's motion for new trial.

In this state of the record we will not pass upon the many legal questions presented by counsel for both plaintiff and respondent here, interesting as they may be. Section 1454, R. S. 1919, makes it the duty of the trial court to specify of record the ground or grounds on which said new trial is granted, and this statute should be followed. However, the failure of tile trial court to specify such grounds does not invalidate the order granting a new trial, where no such grounds are specified. The motion for new trial alleges, as one of the reasons why the new trial should be granted, that "the verdict and judgment are against the evidence." An assignment that the "verdict is against the evidence," means merely that the "verdict is against the weight of the evidence." Raifeisen v. Young, 183 Mo. App. 508, 167 S. W. 648; Lackland v. United Railways Co., 197...