Kent v. L. B. Price Mercantile Co.

• Court: Missouri Court of Appeals
• Writing for the Court: Sutton
• Citation: Kent v. L. B. Price Mercantile Co., 17 S.W.2d 983 (Mo. App. 1929)
• Decision Date: 04 June 1929
• Docket Number: No. 20608.,20608.
• Parties: KENT v. L. B. PRICE MERCANTILE CO.

17 S.W.2d 983

KENT v. L. B. PRICE MERCANTILE CO.

No. 20608.

St. Louis Court of Appeals. Missouri.

June 4, 1929.

Appeal from Circuit Court, Audrain County; Emil Roehrig, Judge.

"Not to be officially published."

Action by J. E. Kent against the L. B. Price Mercantile Company. Judgment for plaintiff, and defendant appeals. Affirmed.

McCluskey & Hollis, of Columbia, for appellant.

J. M. Bone, Jr., of Mexico, Mo., for respondent.

SUTTON, C.

This is an appeal by defendant from a judgment of the circuit court against defendant in favor of plaintiff for $63. The action, which is for commissions alleged to have been earned by plaintiff on the sale of merchandise made by plaintiff under contract with defendant, was commenced in a justice court, whence it went on appeal to the circuit court, and was tried anew in the circuit court, with a jury.

The first assignment of error is the refusal of defendant's application for a change of venue. The application for change of venue is not set out or referred to in the bill of exceptions. No exception to the ruling of the court on the application is preserved in the bill; so that the ruling of the court on the application is not properly before us for review. Wolff v. Ward, 104 Mo. 127, 16 S. W. 161. Nevertheless, since what purports to be a copy of the application and notice thereof are set out in the abstract of the record proper, we will give the same due consideration. The application states, as cause for the change of venue, that the minds of the inhabitants of Audrain county are so prejudiced against defendant that it cannot have a fair trial in said county. It does not state in direct and definite terms when defendant acquired information and knowledge of the existence of the cause for a change of venue. The application is made and sworn to by L. E. Spalding as agent for the defendant, and states that the information and knowledge of the existence of the cause for a change of venue first came to the affiant since the appeal from the justice of the peace, and that the application for a change of venue was made as soon as the affiant acquired information and knowledge of the existence of the cause for change of venue. The record before us does not show when the appeal was taken from the justice. Notice of the application was served on June 7th, which was the fourth day of the June term of court, 1928. The notice stated that defendant would file application for a change of venue on June 11th, which was the eighth day of the June term, and the application was presented to the court by defendant, and overruled by the court, on that day.

The record before us does not show on what day the cause was docketed for trial, but it shows that the cause was tried on June 13th. The statute requires that the application for a change of venue shall be made as soon as practicable after information and knowledge of the cause for the change of venue is acquired, and in no case later than the first day of the next regular term of court thereafter, and also requires that the application must show when the applicant obtained such information and knowledge. Sections 1359 and 1360, R. S. 1919, and Session Laws 1921, p. 204. Whether or not the defendant in this case presented its application for a change of venue to the court as soon as practicable after obtaining information and knowledge of the cause for change of venue was, we think, a question resting in the sound discretion of the trial judge. State, to Use of Stewart, v. Matlock, 82 Mo. 455.

The next assignment is that the court committed error in not rebuking counsel for plaintiff for arguments of facts not sustained by the record. The defendant has not pointed out the particular arguments of facts which it claims were not sustained by the record, nor a single instance in which it requested the court to rebuke counsel. Nor did defendant in its objections in the court below point out any particular statement of counsel which it regarded as not sustained by the record. It is well settled that objections of this character must be specific.

Defendant further urges that the court committed error in overruling its objections to the arguments of plaintiff's counsel, as follows: "Corporations should not be permitted, just because they are large, and have money, to profiteer, skin poor people, and take away from them their hard-earned money." The record does not show that any such language as this was used by plaintiff's counsel. Counsel did argue to the jury that the evidence showed that defendant owed plaintiff hard-earned money, and asserted that it was time to draw the line on corporations doing unethical practice and profiteering in carrying on their business. But the court sustained defendant's objection to the argument, and instructed the jury to disregard it. Defendant appears to have been satisfied with the court's action in the matter, as it neither asked the court to rebuke counsel nor to declare a mistrial. Obviously, this assignment must be ruled against defendant.

Defendant also urges that the court erred in permitting plaintiff to cast reflections upon defendant's witness, F. G. Hollis, by charging him with being a crook and a grafter. We do not find in the argument of counsel as preserved in the record, the language attributed to him in this assignment. Nor has the defendant pointed out the particular language to which this assignment refers, but has been content to make reference to a portion of the argument covering nearly a page of the abstract. It does not appear in either the portion of the argument to which reference is made or elsewhere that either of the opprobrious terms, "crook" or "grafter" was used. The argument, however, does reflect upon the...