Herbert v. Hawley

• Decision Date: 02 December 1930
• Docket Number: No. 21257.,21257.
• Parties: HERBERT v. HAWLEY et al.
• Court: Missouri Court of Appeals

32 S.W.2d 1095

HERBERT v. HAWLEY et al.

No. 21257.

St. Louis Court of Appeals. Missouri.

December 2, 1930.

Appeal from Circuit Court, St. Louis County; Julius R. Nolte, Judge.

"Not to be officially published."

Suit by Frank J. Herbert against Eunice Hawley, Edward Hummert, Anna Hummert, and others. Judgment for plaintiff, and from an order granting a new trial on motion of defendants named, except defendant first named, plaintiff appeals.

Reversed and remanded, with instructions.

Seneca C. Taylor, of St. Louis, for appellant.

A. H. Kerth, of Clayton, for respondents.

HAID, P. J.

This is an appeal from an order granting a new trial upon a judgment for plaintiff in the total sum of $1,599.52 and granting him a mechanic's lien in that sum against the property described in the petition.

The principal defendant (the record owner of the property) filed no pleading. The purchasers of the property (Edward and Anna Hummert) filed a general denial, and although the defendants named as the trustees and cestuis que trust in two deeds of trust executed by the record owner filed no pleadings, the Kirkwood Trust Company, trustee in one of the deeds of trust, and Charles D. Thursby, cestui que trust, participated in the trial of the case.

The trial was had before the court, without a jury, on October 19, 1928, and the judgment was entered at the succeeding May term, 1929, on June 24, 1929. On June 27, 1929, Edward and Anna Hummert filed their motion for a new trial.

On January 27, 1930, at the January term, 1930, the court sustained the motion for a new trial and in its order recited the filing of a memorandum, which is as follows:

"To establish his right to a mechanic's lien plaintiff relied upon an oral contract with defendant Eunice Hawley. Eunice Hawley had been personally served and remaining defendants had a right to expect her presence at the trial. She made no defense and did not appear at the trial. The evidence of defendants Hummert tended to deny the existence of any such contract and also questioned the relationship that existed between plaintiff and defendant Eunice Hawley in reference to the ownership of the premises. The testimony of defendant Eunice Hawley would no doubt be of material value to the Court not only in reference to the alleged contract but also as to title.

"Defendants Hummerts' motion is not verified nor supported by proper affidavits filed in time to preserve defendants' right to a new trial upon the ground of newly discovered testimony. The Court, however, in the interest of justice, may grant a new trial on grounds not enumerated in the motion for a new trial, if necessary so to do, to do substantial justice.

"The hiatus in defendants' testimony is such a ground—when the hiatus in proof is likely to be supplied by a new trial (Finnegan v. Missouri Pac. R. Co., 244 Mo. 663, 149 S. W. 612).

"For the reasons stated and because the Court finds that an improper finding was occasioned by the mistake of defendants Hummerts' counsel in proceeding to trial in the absence of defendant Eunice Hawley and because of the availability of said Hawley's testimony at another trial, said newly discovered evidence being partially set out in Eunice Hawley's affidavit, the Court, to do substantial justice, now exercises the discretion it has and ex necessitate rei grants defendants a new trial because the finding and judgment are against the weight of the evidence (Hill v. Jackson, 220 Mo. App. 1302, 290 S. W. 1012, loc. cit. 1013).

"Motion for new trial sustained.

"Finding and judgment heretofore made and entered set aside and for naught held and new trial granted defendants."

It will be observed that the court specifically states that the motion for new trial is not verified nor supported by proper affidavits filed in time to preserve the right of defendants to a new trial upon the ground of newly discovered evidence. Nor, as the memorandum of the court shows, was the new trial granted on the ground that the finding was against the weight of the evidence. In fact, our reading of the record convinces us that the finding of the court is amply sustained by the evidence introduced at the trial.

In support of its ruling on the motion for new trial, the court cites the cases of Finnegan v. Railroad, 244 Mo. 608, 663, 149 S. W. 612, and Hill v. Jackson, 220 Mo. App. 1302, 290 S. W. 1012, 1013.

In the first of the above cases, the question was whether in reversing a judgment in favor of the plaintiff, the Supreme Court should reverse outright or should remand the case to give the plaintiff an opportunity to supply a hiatus in the proof on a crucial issue. It was held that because the plaintiff prevailed below, the laboring oar to reverse outright was with the defendant, and since, as the opinions filed show, the court was divided upon the question as to the right of the plaintiff to recover, it was held that upon the showing made of additional facts not fully disclosed by the record it was proper to remand the case.

The second case above mentioned was a judgment entered for plaintiff upon the verdict of a jury. On motion for a new trial the defendant filed in support thereof the affidavits of two jurors to the effect that certain news items upon the case were discussed in the jury room. The appellate court held that it was for the trial court to determine whether the losing party had a fair and impartial trial and, "in such cases, the trial court should exercise the great discretion it has and, ex necessitate rei, grant a new trial on the weight of the evidence if no better reason can be found," quoting from the case of Bank of Malden v. Stokes, 220 Mo. App. 131, 280 S. W. 1055, which likewise was an appeal from a verdict of a jury.

It is firmly established that in cases tried to juries, the trial court is invested with broad powers in the granting of new trials and the discretion of the judge "is limited only by the...