McCarthy v. Halloran
| Decision Date | 31 December 1968 |
| Docket Number | No. 2,No. 53120,53120,2 |
| Citation | 435 S.W.2d 339 |
| Parties | Jacqueline McCARTHY, Respondent, v. Paul J. HALLORAN, Appellant |
| Court | Missouri Supreme Court |
Lester Watson, Richmond Heights, for respondent.
James J. Amelung, Ronald C. Willenbrock, Holtkamp & Amelung, St. Louis, for appellant.
This suit is one for personal injuries arising from an automobile collision. There was a verdict in plaintiff's favor for $250. Under the peculiar circumstances presented, we are not concerned with the facts or the evidence. Our controversy begins with the verdict. Since the claim was for $25,000, we have jurisdiction. Plaintiff filed a motion for new trial on several stated grounds. Defendant filed a motion 'for a directed verdict,' in accordance with his trial motion or, in the alternative, for a new trial on liability only; the only ground thus stated for a new trial was error in giving plaintiff's Instruction No. 2. The Court sustained plaintiff's motion 'on the ground that the verdict is against the law and the evidence'; it sustained defendant's motion for a new trial for error in the giving of Instruction No. 2. Defendant appealed; plaintiff did not.
Counsel for defendant filed here a motion to compel the plaintiff-respondent to file the first brief under Rule 83.06(b), V.A.M.R., for the reason that the ground stated in the Court's order granting plaintiff a new trial preserved nothing for review and that, in essence, the order stated no valid ground for a new trial. We sustained that motion and ordered respondent to proceed. Respondent's counsel has since been most dilatory. A continuance was requested four days before a setting of the case at our April, 1968 Session, and after appellant had filed a motion 'To Affirm Judgment.' With some reluctance we continued the case. At the September Session, respondent's brief was filed only seven days before the setting of the case (instead of 45 days) and it was necessary for us to rest the case at the end of the docket in order to give the appellant additional time. Counsel for respondent has asserted that other urgent business caused these delays, but there has been no excuse for his failure to advise the Court earlier and at least request appropriate action. The business of the Court should be treated with more respect. Appellant's motion to 'affirm the judgment' is overruled for the reasons stated later.
Appellant has included in his brief a motion to strike respondent's brief: (1) for delay in filing it; (2) for failure to include page references to the transcript under Rule 83.05(c) and (d), and Rule 83.09. We permitted the brief to be filed, and no facts are involved on the appeal. We overrule the motion, preferring to determine this unusual situation on the merits.
In ordering respondent to file the first brief we ruled, in substance, that the order granting plaintiff a new trial because the verdict was 'against the law and the evidence' stated no legal ground. We issued that order pursuant to Rule 83.06(b). We now reaffirm that ruling expressly. There can be no doubt under our authorities that such a general assignment is meaningless and raises nothing for review, and that consequently no legal ground was stated. Robbins v. Robbins et al., Mo., 328 S.W.2d 552; Edmisten v. Dousette, Mo.App., 334 S.W.2d 746. In those two opinions sundry other authorities are cited. It thus became incumbent upon respondent to demonstrate affirmatively in her brief that there was some adequate, nondiscretionary ground for a new trial. We do not presume that a trial court granted a new trial on a discretionary ground when no such ground has been stated. Rule 83.06(c); Ruediger v. American Bus Lines, Inc., Mo., 426 S.W.2d 4, 10.
Respondent has wholly failed to demonstrate the existence of any valid ground for a new trial. The basis difficulty with the argument in respondent's casual four and one-half page brief, is that counsel persistently assumes that the ground stated by the Court in its order was that the verdict was against the weight of the evidence. This is manifestly untrue. The latter ground was specifically alleged in the...
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St. Louis-San Francisco Ry. Co. v. Morrison
...is not supported by the evidence 'is meaningless' and neither preserves nor presents anything for review in a jury case. McCarthy v. Halloran, Mo., 435 S.W.2d 339, 340; Grubbs v. Myers, Mo.App., 407 S.W.2d 43, 44(2); Williams v. Kaestner, Mo.App., 332 S.W.2d 21, 25--26(5); Connor v. Temm, M......
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Bishop v. Carper
...nondiscretionary ground for a new trial.'" Stewart v. Stewart, 901 S.W.2d 302, 303 (Mo.App. W.D.1995) (quoting McCarthy v. Halloran, 435 S.W.2d 339, 340 (Mo.1968)). Pursuant to Rule 84.05(d) then, "[i]f the trial court grants a new trial without specifying discretionary grounds, it shall ne......
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Dixon v. Bi-State Development Agency
...is against the law and against the law and the evidence-are worthless and state no legal basis for a new trial. McCarthy v. Halloran, 435 S.W.2d 339, 340 (Mo.1968); Schanz v. Estate of Terry, 504 S.W.2d 653, 657 (Mo.App.1974). We cannot speculate under the circumstances whether the trial co......
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Rodman v. D & R Apartments
...no legal basis for a new trial." Dixon v. Bi-State Development Agency, 636 S.W.2d 696, 697-8 (Mo. App. 1982) (citing McCarthy v. Halloran 435 S.W.2d 339, 340 (Mo. 1968)); (2) Under Rule 78.03, the August order granting a new trial, which did not specify of record the grounds on which it was......