Helm v. Bassett
| Decision Date | 31 January 1845 |
| Citation | 9 Mo. 52 |
| Parties | HELM v. BASSETT. |
| Court | Missouri Supreme Court |
CLARK and TODD, for Plaintiff. The counsel for the plaintiff in error, rely upon the following points and authorities to reverse the judgment of the Circuit Court: 1st. There was evidence of the speaking of the words as charged, and also of the intention of the defendant when he uttered them, as well as of the understanding of the hearers, and that where there is evidence from which a jury may find one way or the other, a court ought not and will not set aside their finding, although such finding may be different from what the court would have found. To authorize the interference of a court, the finding of the jury must be clearly and flagrantly against the evidence. Hardin's R. 586, Taylor v. Giger; 3 Cowen, 231; Goodrich v Woolcot, 5 Cowen, 714; 4 Mo. R. 295; Oldham v. Henderson, 6 Mo. R. 61; Dooley & Kirtland v. Jinnings, 6 Mo. R. 61; Lackey v. Lane & McCabe, 7 Mo. R. 220. 2nd. The Circuit Court did not err in the instructions given and refused. 3rd. If the Circuit Court erred in granting a new trial, the last verdict ought to have been set aside and a judgment entered upon the first verdict; and that the motion to the court for that purpose, was made at the right time. 4 Mo. R. 86, Hill v. Wilkins; Hardin's R. 586, Taylor v. Giger; 5 Mo. R. 62, Martin v. Hays.
LEONARD, for Defendant. In support of the judgment of the Circuit Court, it will be insisted for the defendant in error, without going at all into the merits of the case, upon the law as ruled by the Circuit Court on the first trial, or upon the finding of the jury on the evidence upon the trial--that, 1st. This court will not reverse a judgment unless it appear affirmatively by the record that the Circuit Court erred. And in the case at bar it cannot so appear, because the record does not show, first, what evidence was offered by the defendant on the first trial and rejected by the court,--or that there was no evidence so offered and rejected; or, second, what instructions were refused and what given to the jury; or, third, what was shown on the hearing of the motion to set aside the verdict, as to the misreading of the instructions to the jury. 2nd. The granting of a new trial cannot be assigned for error, if the party complaining, instead of abandoning his case at that point goes into a second trial. Davis v. Davis, 8 Mo. R. 56. 3rd. If it be material in this case to inquire into the propriety of the grant of the new trial by the Circuit Court, it will then be insisted for the defendant, that the new trial was properly allowed.
This was an action of slander brought by Helm against Bassett, in which Helm recovered a verdict of four hundred and seventy dollars. A motion was afterwards made for a new trial, which was sustained; and on a second trial, Helm obtained a verdict for sixty dollars. Helm then moved the court to enter judgment on the first verdict, as the motion for the new trial had been improperly sustained. This motion was overruled, and the cause is brought up by writ of error.
The question presented by the record in the case is whether a writ of error will lie for granting a new trial? It must be confessed that contradictory opinions have been expressed by this court in relation to this matter. As this however is a rule of practice not affecting the rights of property, an unsteadiness in its application cannot be the source of that degree of regret, which must be caused by an uncertainty in the rules which govern the acquisition and transfer of property, and it is of some importance that the practice of our courts should be in accordance with the principles of law.
In the case of Johnson v. Strader & Thompson, 3 Mo. R. 355-8, the court upon the first argument or the cause, inclined to the opinion, that the granting of a new trial could not be assigned for error. Upon a re-argument however, that opinion was changed, and it was held that it was error. So it was held in the case of Hill v. Wilkins, 4 Mo. R. 86. The question does not appear to have come up again until the cases...
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...458, in an opinion by Philips, J. There seems to be no reason to doubt this rule. It is strengthened by the principle adopted in Helm v. Bassett, 9 Mo. 52 (cited in the Case) and generally approved. In Longdon v. Kelly, 51 Mo.App. 572, the court was considering the correctness of a ruling s......
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