James v. Oliver

• Decision Date: 04 February 1908
• Citation: 129 Mo. App. 86,107 S.W. 1012
• Parties: JAMES v. OLIVER.
• Court: Missouri Court of Appeals

107 S.W. 1012

129 Mo. App. 86

JAMES v. OLIVER.

St. Louis Court of Appeals. Missouri.

February 4, 1908.

1. APPEAL — GRANT OF NEW TRIAL — REVIEW.

Where the evidence was conflicting, and the court, without assigning any reason therefor, sustained a motion for new trial, alleging among other things that the verdict was against the weight of evidence, the court on appeal could not interfere, since the motion might have been sustained on the ground that the verdict was against the weight of the evidence.

2. TRIAL — SUBMISSION OF ISSUES TO JURY — FINDINGS OF JURY — CONCLUSIVENESS.

In a suit in equity the court is not bound by the findings of the jury on issues submitted to them.

3. NEW TRIAL — GROUNDS — INSUFFICIENCY OF EVIDENCE.

In an action at law the trial court properly sets aside the verdict, where, in his opinion, it is opposed to the weight of the evidence.

Appeal from Circuit Court, Montgomery County; Jas. D. Barnett, Judge.

Action by Elizabeth James against Elbert Oliver. From an order sustaining a motion of defendant for new trial, plaintiff appeals. Affirmed.

John T. Barker, for appellant. Jas. F. Ball, for respondent.

GOODE, J.

This is an appeal from the order of the court below sustaining a motion of respondent for new trial. The suit sought to recover from respondent the sum of $566.60 alleged to have been intrusted to him by appellant at different times to handle as her agent. A fiduciary relationship between appellant and respondent is charged in the petition, which bears the marks of a bill in equity, and the cause seems to have been submitted to the jury on special issues framed by the court. Instructions were given and refused on the various issues. The jury returned a verdict in favor of appellant on one of the items in suit. This item was a note for $116, dated October 8, 1887. It was originally signed by the respondent and his mother, Camilla Oliver, now deceased, and the evidence tends to show was a loan made to the mother. The evidence tends further to prove respondent was his mother's surety on the note, and, some difference having arisen between him and his mother, his name was erased from the note, with the consent of appellant. The evidence as to this and other matters of fact in dispute was contradictory, and one of the grounds for the motion for new trial was the verdict was against the weight of the evidence. The court below assigned no reason for sustaining the motion in the order sustaining it, and hence we...