King v. Mann

• Decision Date: 30 July 1926
• Docket Number: 25184
• Parties: A. J. King v. John E. Mann, Appellant
• Court: Missouri Supreme Court

286 S.W. 100

315 Mo. 318

A. J. King v. John E. Mann, Appellant

No. 25184

Supreme Court of Missouri

July 30, 1926

Transferred from Springfield Court of Appeals.

Affirmed and remanded.

Hargus & Johnson for appellant.

(1) There can be but one new trial granted to the same party because the verdict is against the weight of the evidence. Sec. 1454, R. S. 1919; O'Donnell v. United Rys Co., 152 Mo.App. 506; Van Loon v. Power Co., 271 Mo. 209. (2) There was a prior new trial granted plaintiff in this cause on the ground that the verdict was against the weight of the evidence. King v. Mann, 199 S.W. 705. (3) In the absence of due cause an attorney's abandonment of the case of his client will bar recovery. Blanton v. King, 73 Mo.App. 150; King v. Mann, 207 S.W. 836. (4) Whether or not an attorney was employed by the defendant, and if so, whether the latter agreed to pay, and what were the terms of the contract, and whether the services were rendered and their value, and whether an attorney was justified in withdrawing from the case, are all questions of fact for the jury. 4 Cyc. 104; King v. Mann, 207 S.W. 836. (5) A trial court cannot arbitrarily exercise its discretion in setting aside a verdict. Van Loon v. Power Co., 271 Mo. 209; Edwards v. Mo. Pacific, 82 Mo.App. 486.

W M. Bowker, L. E. Crook and John A. Gilbreath for respondent.

(1) Where an order granting a new trial does not specify the ground on which it is sustained, on appeal the order will be sustained if it is good upon any ground set out in the motion. Lead Co. v. Webster, 193 Mo. 351. (2) Whenever the trial court is satisfied that the verdict of the jury is the result of passion and prejudice it is its duty to grant a new trial; and such discretion of the trial court on appeal will not be reviewed, unless such discretion has been abused or arbitrarily exercised. Rigby v. Transfer Co., 153 Mo.App. 330; Claybaugh v. Railroad Co., 56 Mo.App. 630. (3) The fact that a new trial has been granted once because against the weight of the evidence does not prevent granting a new trial for other reasons. Culp v. Supreme Lodge, 198 Mo.App. 77; Sec. 1453, R. S. 1919. (4) The trial court has wide discretion in passing on motions for new trials, and will not be interfered with by the appellate court unless in direct conflict with established law or the result of abuse of judicial discretion; and the presumption will be, in the absence of a showing, that the trial court did not violate the statute, Sec. 1453, R. S. 1919, in granting a second new trial. Oliver v. Railroad Co., 211 S.W. 699. (5) Ordinarily, litigants appear by attorneys, who act for them. Litigants are therefore necessarily charged with any knowledge possessed by their attorneys in regard to the orders of the court relating to the trial of the causes, and Dillon must therefore be charged with the knowledge of his local attorney, although that attorney had failed to communicate the knowledge to him. Dillon v. Hawkins, 227 S.W. 760.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

This action has had a long and tortuous career through the courts of the State. It is one to collect an $ 100 attorney's fee. It was commenced originally against John E. Mann and his father, W. T. Mann, as co-defendants, on June 12, 1915, in a justice-of-the-peace court in Vernon County, from whence it was appealed to the Circuit Court of Vernon County and tried de novo, resulting in a verdict and judgment for both defendants on October 8, 1915. On the same day, plaintiff filed a motion for a new trial, which was sustained and a new trial granted, but the record does not show the grounds assigned by the trial court for its order. The case was then removed on change of venue to the Circuit Court of Bates County, and a trial there had, again resulting in a verdict and judgment for both defendants on November 24, 1916. On February 6, 1917, the latter court sustained plaintiff's motion for a new trial, without assigning a reason or ground therefor (so far as the record shows) and defendants appealed to the Kansas City Court of Appeals, where the order granting a new trial was affirmed, the latter court holding that, no grounds having been assigned by the trial court in granting a new trial, it would be assumed, inasmuch as the motion for a new trial complained that the verdict was against the weight of the evidence, that the trial court may have sustained the motion on that ground, and if so, that was a matter exclusively within the discretion of the trial court and was not reviewable on appeal. [King v. Mann, 199 S.W. 705.] The order of the trial court having been affirmed, the cause was returned to the Circuit Court of Bates County for a second start, resulting in a verdict and judgment on February 18, 1918, for W. T. Mann, and a directed verdict and judgment for plaintiff against defendant John E. Mann. Defendant John E. Mann appealed to the Kansas City Court of Appeals, but plaintiff not appealing from the judgment in favor of the father, W. T. Mann, the latter drops out of the case. The Kansas City Court of Appeals, on the second appeal, held that the trial court erred in directing a verdict for plaintiff against defendant John E. Mann, reversed the judgment and remanded the cause for a retrial. [King v. Mann, 207 S.W. 836.] Thus, the action returned to the Circuit Court of Bates County for a third start, from whence it was removed by plaintiff on change of venue to the Circuit Court of St. Clair County, again resulting in a verdict and judgment for the sole defendant, John E. Mann, on December 8, 1920. Plaintiff filed a motion for a new trial, which was sustained on April 8, 1921, the trial court assigning no reason or ground for its action. Defendant appealed to the Springfield Court of Appeals, which court ruled that the order of the trial court granting a new trial was proper, but indicated that it would be the order of the appellate court that the cause be remanded with directions to the trial court to enter a judgment for plaintiff for $ 100, with interest and costs, were it not for the fact that the appellate court deemed its opinion and judgment to be in conflict with the decision of the Kansas City Court of Appeals in King v. Mann, 207 S.W. 836. Therefore, because of such conflict, the Springfield Court of Appeals certified the cause to this court for final determination. [King v. Mann, 235 S.W. 506.] Thus, it appears that the action has been tried once in a justice's court, four times in three different circuit courts, has been ruled three times in two different courts of appeals, and now we are afforded an opportunity of trying our hand and judicial minds upon this momentous action.

The facts are somewhat briefly stated in the three opinions of the several Courts of Appeals herein cited. Stated more fully again, they are as follows:

Defendant was a stockholder in a meat-packing corporation, which had executed a mortgage or deed of trust in May, 1913, for $ 6,000 upon its real property, plant, equipment, meats and bills receivable. This mortgage had been foreclosed for default in payment of interest, and some six or seven of the stockholders and directors of the corporation had purchased the properties, in the name of one of them, at foreclosure sale for the sum of $ 15,000. Defendant, who was the owner of $ 6450 (par value) of capital stock in the corporation, was not one of the purchasing stockholders at the foreclosure sale held on January 4, 1915. Hence, he was in position to lose his holdings in the capital stock of the corporation. Defendant claimed that the corporation had sufficient funds on hand to make the interest payment due upon the mortgage, but that the default in payment of interest and the subsequent foreclosure was a scheme or device by which defendant and other stockholders in the corporation were to be "frozen out" of their interests in the corporation. Defendant admitted that plaintiff was employed by him as an attorney to bring a suit against the purchasing stockholders to set aside the deed of foreclosure. Plaintiff and defendant differ only as to the terms of the contract of employment, which was verbal.

Plaintiff testified: "They (defendant and his father) thought if a suit was brought to tie the plant up in its present condition, that the stockholders -- those that had purchased it -- would come to them for a compromise, and pay them some of their money; their object being to keep the packing-house folks, who had bought the plant, from re-organizing and re-incorporating under the law; wanted them to meet them for a compromise, and get some of their money that they said they had lost; and they wanted to know if I would bring such a suit. I said, I don't know; I would hear all the facts. They reiterated that they wanted a suit brought, simply to tie up the packing plant, so that there could not be a re-incorporation of the stockholders that had bought it; and that they thought that they could in that way effect a compromise. Well, I says, if that is all you want done, I will bring the suit for one hundred dollars, and I think we can tie it up, so that there would be nobody willing to purchase the stock and go into a corporation that was in litigation; they both spoke up and said, that is satisfactory to us; we want you to get right at it. I went to the office and worked until about eight o'clock and came down with my skeleton and dictated it to her (the stenographer), and she copied something like three or four copies of the statement I had; I then read it to the Manns, and they said that was just exactly what they wanted. I then prepared a lis pendens -- that is, a notice of suit -- to file in the recorder's office; these papers were taken to the sheriff's office, and the sheriff served them that...