Howland v. Reeves

• Decision Date: 11 April 1887
• Parties: LEVI HOWLAND, Appellant, v. GEORGE REEVES, Respondent.
• Court: Kansas Court of Appeals

25 Mo.App. 458

LEVI HOWLAND, Appellant, v. GEORGE REEVES, Respondent.

Court of Appeals of Missouri, Kansas City.

April 11, 1887

APPEAL from Schuyler Circuit Court, HON. NAT. M. SHELTON, Special Judge.

Affirmed.

The case is stated in the opinion.

HIGBEE & RALEY, for the appellant.

I. The improper granting of new trial may be assigned for error. Blanchard v. Wolf, 6 Mo.App. 200; Fretwell v Laffoon, 77 Mo. 26; The State v Curtis, 77 Mo. 267.

II. No diligence was shown; the newly discovered evidence is merely cumulative. The State v. McLaughlin, 27 Mo 111; Fretwell v. Laffoon, 77 Mo. 26; Snyder v. Burnham, 77 Mo. 52; Cook v. Railroad, 56 Mo. 380; People v. Sup. Court, 10 Wendell (N. Y.) 285; The State v. Larrimore, 20 Mo. 427; Wells v. Sanger, 21 Mo. 359; Boggs v. Lynch, 22 Mo. 563; Gaff v. Mulholland, 33 Mo. 203.

III. The court erred in considering the affidavits, on points of evidence which were all outside of the scope of the motion for new trial. It was equivalent to allowing defendants to file a third motion for new trial, supported by affidavits, at the next term after the trial.

IV. The motion was not accompanied by the affidavit of Rainbolt, nor any reason given for not filing it; nor was leave taken to file it afterwards, nor to file affidavit of defendants, Reeves, Rainbolt, Taylor and A. J. Reeves, at the November term, 1885. State v. McLaughlin, 27 Mo. 111.

V. The statute does not authorize the filing of two motions for new trial; all the grounds should have been stated in the first motion. It was not withdrawn until both were called at the November term. The second motion was then considered as a separate motion.

VI. The newly discovered evidence would not probably change the result.

VII. Where new trial is granted in violation of statute mandamus will lie. 12 Mo. 436; 76 Mo. 605; 36 Mo. 46.

SMOOT & PETTINGILL, for the respondent.

I. The bill of exceptions in this cause, after showing the granting of a new trial, shows the concluding proceedings in the trial court, in haec verba: " And, thereupon, this cause coming on for trial, plaintiff refused further to prosecute the same, and the court dismissed this cause for want of prosecution." The original bill of exceptions does not contain the respondent's motion for a new trial, nor the affidavits in support of the same, but simply refers to said motion for new trial, and affidavits as exhibits, and contains a request to the clerk to copy them in the said bill of exceptions.

II. No appeal or writ of error lies from the action of a court in granting a new trial. The remedy is by mandamus. Wright v. Railroad, 20 Mo.App. 481. The refusal to prosecute a suit, and a dismissal, by the court for that reason, is a voluntary dismissal and an appeal will not lie. Railroad v. County Court of Franklin County, 55 Mo. 162.

III. The only question presented is this: Can the action of the court below, in granting a new trial, be reviewed on appeal or writ of error? When appellant, the plaintiff in the court below, refused to prosecute his suit, and the court thereupon rendered a judgment of dismissal for want of prosecution, it was equivalent to a voluntary non-suit taken by appellant, and no appeal could be taken.

PHILIPS P. J.

This action was to recover in this state on a judgment rendered in the circuit court of Wayne county, Iowa. The cause came on for trial, May 5, 1885. Plaintiff had judgment. On the sixth day of said month defendants filed motion for new trial, alleging various errors. On the eighth day of said month, defendants filed a supplemental motion alleging newly discovered evidence. These motions were continued for hearing to the next November term of the court. The latter motion was accompanied by the affidavit of George Reeves, one of the defendants. Before the hearing of the motions the defendant, Reeves, filed additional affidavit to said motion. At the hearing the defendants abandoned the first grounds for new trial, and relied only upon the ground of newly discovered evidence. The defendants, against the objection of plaintiff, read in support of the motion the affidavits of witnesses as to the material facts newly discovered. The court sustained the motion and awarded a new trial. The statement of plaintiff is: " That this motion was sustained November 7, 1885, solely on the ground that newly discovered evidence, and plaintiff excepted. The case was thereupon dismissed for want of prosecution. Plaintiff tendered a bill of exceptions, which was allowed and filed, and appeal granted."

I. From the way in which plaintiff states his case, it would seem as if he did not tender his bill of exceptions until after the final judgment was rendered dismissing his action for want of prosecution. And as he has brought his case here by appeal, it would seem that he has in fact appealed from the final judgment of the court, instead of prosecuting his writ of error from the action of the court in granting the motion for a new trial after the final judgment was rendered. Waiving, how ever, any discussion of this technical question, and choosing to determine this case on its merits, we will consider the matters of error assigned by appellant in their order. As both motions for new trial were filed within the given four days, there is no tenable objection to the court considering the second motion, especially after the defendant, in effect, abandoned the ground set up in the first motion.

It is assigned for error that the court admitted, on the hearing of the motion, the affidavits of the witnesses, when they had not been filed at the time of filing the motion, and without first having obtained leave of the court to file them at a later day. This objection is not tenable. There is no statute in this state, as in some of the states, regulating this practice. The statute only requires that the party moving shall file his motion within four days after judgment. Nor is there any statutory requirement as to supporting the motion by affidavit. It is a matter of practice and usage. The court admits the affidavits of the witnesses, as it often economi es time in the hearing, and is the better way of preserving the exact evidence, or statement of the witness. These affidavits are to be regarded as the evidence in support of the motion; and, like any other evidence, may be presented at the hearing. As, for example, it is not an uncommon thing in the practice of the courts of this state, on the hearing of a motion, impeaching the verdict of the jury, to examine the sheriff ore tenus in court at the hearing. So it is held, the opposite party may introduce evidence, or affidavits at the hearing, impeaching the integrity of the affiants relied on by the mover for new trial. This is admitted at the time of the hearing. Parker v. Hardy, 24 Pick. 246.

Had the motion in this case come on for hearing at the term at which it was filed, the defendants might, if not ready with their proofs, have asked for further time in which to prepare the affidavits.

This is a common practice. The important witness may be out of the way, or too sick to obtain his affidavit in time, should the motion be taken up instanter, as it might be. In such case the party may ask for a continuance of the motion, in order to enable him to prepare his affidavits. It would be a matter entirely within the sound discretion of the court. Here in this case the hearing of this motion was continued over the term. For what reason is not disclosed. The plaintiff, for his own protection, might have demanded that the defendants be required to file the affidavits at the first term; and it would have been within the discretion of the court to require this to be done. The receiving of the affidavits, as and when the court did, is a matter of practice in the court, in the exercise of a sound discretion, with which this court will not interfere, except it be made to appear clearly that the discretion has been abused.

II. It is also assigned for error that the motion for new trial was supported by the affidavit of only one of the defendants. This is not well taken. Where the defendants, as in this case, are sued jointly, on a joint demand, and there is a joint judgment against them, the affidavit of one of them meets the reasonable requirements of the rule of practice. Huntington v. House, 22 Mo. 365; Roach v. Jones, 33 Mo. 393; Morgner v. Birkhead, 34 Mo. 214.

III. It is further objected that the court permitted one of the defendants, after the four days time for filing motion, to make a supplemental affidavit in support of the motion. We think this was also a matter of discretion with the trial court. Like the affidavit to a pleading, when that was required by the practice act, the affidavit was not a part of the motion. Roach v. Jones, supra. Under the rule or usage such motion must be supported by the affidavit of the party, or the court may not hear it. But if the affidavit originally filed be informal, or not sufficiently full, we can perceive no valid objection to the court, if satisfied the party is acting in good faith, allowing the party to make a fuller and more definite affidavit. The affidavit of the party is not essential evidence to maintain the motion. It is only proof to the court of the party's good faith. The evidence on which the court ultimately acts is the affidavits of the witnesses who are to depose to the fact on trial. Graham & Watts New Trial, 1067. Even where the statute as in California, requires affidavits in support of the motion to be filed within so many days after motion is filed, it is deemed as somewhat in the discretion of the court to permit affidavits out of time. ...