Landau v. Consumers' Mill Product Co.

• Decision Date: 25 March 1931
• Docket Number: 29338
• Citation: 36 S.W.2d 921
• Parties: LANDAU v. CONSUMERS' MILL PRODUCT CO
• Court: Missouri Supreme Court

36 S.W.2d 921

LANDAU v. CONSUMERS' MILL PRODUCT CO

No. 29338

Supreme Court of Missouri, Second Division

March 25, 1931

Langworthy, Spencer & Terrell, of Kansas City, for appellant.

OPINION

WESTHUES, C.

In this case plaintiff sought to recover from the defendant the sum of $ 15,000 for personal injuries, alleged to have been caused by the negligence of defendant. Plaintiff's petition was filed on the 23d day of December, 1926, in the circuit court of Jackson county, Mo., at Kansas City. Defendant answered. A trial was held before a jury, beginning on the 7th day of May, and ending on the 10th day of May 1928, resulting in a verdict for the defendant. A motion for new trial was filed by the plaintiff, which was sustained by the court. Defendant appealed to this court.

Appellant defendant company, contends that the motion for new trial was not filed within the time required by section 1456, Rev. St. 1919, now section 1005, Rev. St. 1929. It is necessary, therefore, to first consider this question. The section referred to is as follows:

'All motions for new trials and in arrest of judgment shall be made within four days after the trial, if the term shall so long continue; and if not, then before the end of the term.'

Section 2515, Rev. St. 1919, Laws of 1923, p. 144, relating to terms of court, provides, 'at Kansas City, in said county of Jackson, on the second Mondays in January, March, May, September and November.'

The record entries, duly certified to by the clerk of the court, which pertain to the issues, are as follows;

'Be it remembered that on the 52nd day of the regular March Term, 1928 of the Circuit Court of Jackson County, Missouri, at Kansas City, the same being the 10th day of May 1928, the following proceedings were had and made of record before Hon. O. A. Lucas, Judge of Division No. 2 in the cause entitled:

'David B. Landau, Plaintiff, vs. Consumers Mill Product Company, a Corporation, Defendant. No. 247002.

'Now again comes same parties and jury herein, and now said jury retires to jury room to deliberate upon a verdict, and after due deliberation returns into open court their verdict; which said verdict is as follows, towit:

'We, the jury find the issues for the defendant. E. P. Burton, Foreman.

'Wherefore, it is ordered and adjudged by the court, that the plaintiff take nothing of or from the defendant that said defendant go hence without day and have and recover of and from said plaintiff all costs herein incurred and expended and have execution therefor.

'Now on this 1st day of the May Term, 1928, same being the 14th day of May, 1928, the further following proceedings were had and made of record, to-wit:

'David B. Landau, Plaintiff, vs. Consumers Mill Product Company, a Corporation, Defendant. No. 247002.

'Plaintiff files motion for a new trial of this cause.

'Now on this 52nd day of the May Term, 1928, same being the 1jth day of the July, 1928, the further following proceedings were had and made of record, to-wit:

'David B. Landau, Plaintiff, vs. Consumers Mill Product Company, a Corporation, Defendant. No. 247002.

'Plaintiff's motion for a new trial of this cause is by the court heard and sustained, for the reason court erred in given instruction No. 5, for defendant, to which ruling of the court defendant excepts.

'Wherefore, it is ordered and adjudged by the court that judgment heretofore rendered in this cause be and the same is hereby set aside and for naught held, and now cause is now reinstated upon the docket of this court.

'Now on this 56th day of the May Term, 1928, same being the 19th day of July, 1928, the further following proceedings were had and made of record to-wit:

'David B. Landau, Plaintiff, vs. Consumers Mill Product Company, a Corporation, Defendant. No. 247002.

'Now on this day comes defendant and files its application for an appeal from the judgment and decision of this court in this cause, and the court grants and allows said appeal to the Supreme Court of Missouri, as prayed.

'And it is further ordered by the court that said defendant be and it is hereby given to on or before the last day of the September Term, 1928,...