Humbert v. Eckert

• Decision Date: 30 September 1841
• Parties: HUMBERT v. ECKERT.
• Court: Missouri Supreme Court

7 Mo. 259

HUMBERT

v.ECKERT.

Supreme Court of Missouri.

September Term, 1841.

APPEAL FROM ST. LOUIS COUNTY COURT OF COMMON PLEAS.

BOWLIN & WOODRUFF, for Appellant. 1st. That the court erred in excluding all evidence of the marriage of Auguste Voght with her first husband, by general reputation, living together, and holding themselves out as such to the world. Day's R. 166; Starkie's Ev. 939, and cases cited; and Roscoe's Ev. 241. 2nd. That the court erred in refusing evidence of Voght's death, by general reputation currently received and approved amongst his friends. 3rd. That the court erred in refusing to grant a new trial.

POLK, for Appellee. 1st. The bill of exceptions shows that the very evidence was permitted to go to the jury, the exclusion of which is assigned as one reason for granting a new trial. But even supposing that the court below did exclude proper testimony from the jury, this could no more be a ground for a second trial, than misdirection by the court below would be. Yet this court has expressly decided, in the case of Hill v. Deaver, at its last May term, that a new trial cannot be granted for misdirection of the court. 2nd. The motion, the overruling of which is excepted to, is the second motion for a new trial, in the same cause, and in support of the motion there is not assigned a single one of the reasons for which alone by our statute (see Rev. Code, 1835, p. 470, § 2), a second new trial can be granted. So that even supposing the reasons to have existed, yet as they were not assigned, the court could not notice them, and of course could do nothing else than overrule the motion. Dickey v. Malechi et al. 6 Mo. R. 177.

NAPTON, J.

This was an action of assumpsit, instituted by Eckert, before a justice of the peace, against the plaintiff in error, on a promissory note executed by Auguste Voght, Simon Gotz, and Susannah Voght, for $78. Humbert, who intermarried with Auguste Voght after the execution of the note, was made a defendant. Judgment against plaintiff in error was obtained before the justice, and an appeal taken to the Circuit Court, from which court the case was removed to the court of common pleas, where a trial de novo was had, and a verdict again obtained against Humbert. Upon his motion, the verdict was set aside, and a new trial granted, and a second verdict obtained against the plaintiff in error, who again appealed for a new trial, and alleged for causes, that the verdict was against law, against evidence, and because ...