Hurley v. Kennally

• Citation: 85 S.W. 357,186 Mo. 225
• Parties: HURLEY v. KENNALLY.
• Decision Date: 22 December 1904
• Court: United States State Supreme Court of Missouri

85 S.W. 357

186 Mo. 225

HURLEY v. KENNALLY.

Supreme Court of Missouri, Division No. 1.

December 22, 1904.

APPEAL—PRACTICE—BRIEFS—DELIVERY—EQUITY —SETTING ASIDE JUDGMENT.

1. A judgment will not be affirmed for failure of appellant to deliver his brief to appellee within the required time when it appears by affidavit that the delay was due to an accident in the printing office.

2. Where, in an equity case, the evidence was conflicting, it was proper for the chancellor to set aside his findings, and judgment based thereon, if, on reconsideration, he was satisfied that his first conclusions were wrong.

3. Where, in an equity case, a new trial was granted on motion of plaintiff on the ground that the judgment was against the evidence, it was error for the court to thereupon enter judgment for plaintiff.

4. When a motion for a new trial is sustained, the cause is at issue for trial again, and the court has no authority to enter a judgment without another trial.

Appeal from Circuit Court, Jackson County; Jno. W. Henry, Judge.

Suit by John Hurley against David Kennally. From a judgment for plaintiff, defendant appeals. Reversed.

Hardin & Taylor, for appellant. I. Tavener and Holmes & Page, for respondent.

VALLIANT, J.

This is a suit in equity to set aside a deed from plaintiff to defendant to certain land in Jackson county on the ground that the defendant obtained the deed by fraud and undue influence. The answer put the charges of fraud and undue influence in issue. The cause came on for trial, and there was evidence tending to prove the allegations in the petition, and evidence on the part of the defendant to the contrary. The court found the issues in favor of the defendant, and rendered judgment in his favor. In due time the plaintiff filed a motion for a new trial, based mainly on the ground that the finding of the court was against the weight of the evidence. The motion for a new trial came on to be heard and considered, and was by the court sustained, and the finding and judgment were set aside. Then the court, without notice and without a trial, proceeded immediately to render judgment for the plaintiff; vacating the deed revesting the title to the land in plaintiff, and giving defendant judgment for $600 against plaintiff, and a lien on the land therefor. From that judgment the defendant appeals.

A motion is filed by the plaintiff to affirm the judgment because of the failure of appellant to deliver respondent his abstract and brief...