Lamb v. Stubblefield

• Decision Date: 07 November 1922
• Docket Number: No. 17370.,17370.
• Parties: LAMB v. STUBBLEFIELD et al.
• Court: Missouri Court of Appeals

245 S.W. 351

LAMB v. STUBBLEFIELD et al.

No. 17370.

St. Louis Court of Appeals. Missouri.

November 7, 1922.

Appeal from Circuit Court, Ste. Genevieve County; Peter H. Huck, Judge.

"Not to be officially published."

Action by Josie Lamb against J. B. Stubblefield and another. Judgment for defendants, and from an order granting plaintiff's motion for a new trial, the defendants appeal. Affirmed and remanded.

W. E. Edmonds, of Bernie, and E. R. Lentz, of Poplar Bluff, for appellants.

Casper M. Edwards, of Malden, and Wm. T. Jones, of St. Louis, for respondent.

ALLEN, P. J.

This is an action in replevin. The cause was instituted before a justice of the peace in New Madrid county on May 22, 1915, where plaintiff had judgment, and defendants appealed to the circuit court. It appears that the circuit court, on motion of defendants, dismissed the cause for want of jurisdiction, upon the theory that the justice of the peace before whom the suit was instituted had no jurisdiction. From this ruling plaintiff prosecuted an appeal to the Springfield Court of Appeals, where the said ruling of the circuit court of New Madrid county was reversed and the cause remanded. See Lamb v. Stubblefield et al. (Mo. App.) 186 S. W. 730. The trial of the cause thereafter in the circuit court resulted in a judgment for the defendants, from which plaintiff again appealed to the Springfield Court of Appeals, where the judgment was reversed and the cause remanded. See Lamb v. Stubblefield et al. (Mo. App.) 200 S. W. 605. Thereafter plaintiff was granted a change of venue, and the cause was transferred to the circuit court of Ste. Genevieve county, where it came on for trial on April 28, 1020. At this setting of the case the defendants did not appear. Plaintiff proceeded to trial before the court sitting as a jury, and the court on said day rendered judgment in her favor. Within four days thereafter—apparently on the following day—defendant Stubblefield filed a motion for a new trial. The grounds of this motion were: (1) That the verdict was for the wrong party; (2) that the verdict was a surprise to this defendant, as he had no knowledge, of the fact that the case was set for trial on April 28, 1920, but on the contrary had been informed and believed that the term of court at which the case was to be tried would begin on the first Monday in May, 1920 (May 3, 1920), and because of such information and belief he had arranged to be then in attendance at the court, and had subpœnæd witnesses for that day.

With this motion certain exhibits were filed, viz., Exhibit A, a subpoena issued on said April 28, 1920, directed to certain witnesses, commanding them to appear in the Ste. Genevieve circuit court on the first Monday in May, 1920; Exhibit B, a telegram said to have been received by this defendant's attorney, Mr. Edwards, from the clerk of said circuit court, conveying the information that the above-mentioned judgment had been rendered on April 28, 1920; and Exhibit C, a letter from Mr. Edwards to the clerk inquiring as to the date upon which the case was set for trial.

At the hearing on this motion, on October 27, 1920, Mr. Edwards, attorney for defendant Stubblefield, testified in support of the motion. His testimony is to the effect that on October 19, 1919, he was operated upon, and for seven weeks thereafter was confined to his bed; that shortly after this operation the case was set for trial, and, being worried about it, he arranged with another attorney to come to Ste. Genevieve and make some disposition of it; that this attorney subsequently returned to him, and reported that the case had been continued, and that it would be heard at the next term of the court, beginning on the first Monday in May. The witness said, however: "My understanding is he never did get there." And the witness stated that this attorney repeated to him this information numerous times, and he relied upon it; that on April 26, 1920, he wrote to the clerk as to the date on which the case would be heard, and on April 28, 1920, caused a subpoena to be issued for his witnesses, summoning them to appear on May 3, 1920; that the clerk's reply to his letter was a telegram received by the witness about 3 or 4 o'clock in the afternoon of April 28, 1920, informing him of the judgment rendered in favor of plaintiff on that day. And the witness said:

"Immediately on receipt of that telegram, notwithstanding I was still very weak and in wretched health, I came up here and filed this motion."

The court sustained the motion, and from this order granting a new trial the defendant Stubblefield has appealed to this court.

It is argued for appellant that the motion in question is in no sense a motion for a new trial, and cannot be treated as such, for the reason that it does not seek to correct any errors alleged to have occurred during the trial of the case. It is true that the motion does not set up any alleged error occurring at the trial; but our statute (section 1453, Rev. Stat. 1919) provides that a new trial may be granted "where there has been a mistake or surprise of a party, his agent or attorney," etc.; and in the matter of granting new trials the court is not restricted to the causes enumerated in the statute. See Leahey v. Dugdale, 41 Mo. 517; Parker v. Britton, 133 Mo. App. 270, 113 S. W. 259; Iba v. Railroad Co., ...