McKay v. Underwood

• Decision Date: 31 October 1870
• Parties: MCKAY & HOOD, Appellants, v. CHARLES J. UNDERWOOD, Respondent.
• Court: Missouri Supreme Court

47 Mo. 185

MCKAY & HOOD, Appellants,

v.CHARLES J. UNDERWOOD, Respondent.

Supreme Court of Missouri.

October Term, 1870.

Appeal from St. Louis Circuit Court.

Clover, for appellants.

It was not within the jurisdiction of the Circuit Court to reverse the judgment of the Circuit Court at Special Term because, in the opinion of the judges of the Circuit Court at General Term, the verdict was against the weight of evidence. (Tilford v. Ramsey, 43 Mo. 421; see also Strouser v. Drennan, 41 Mo. 296; Faugman v. Hersey, 43 Mo. 123; Easley v. Elliott, 43 Mo. 289; Gillespie v. Stone, 43 Mo. 351.)

Voorhies & Mason, for respondent.

The question is raised that the Circuit Court has no right or authority, sitting in General Term, to review the evidence elicited at the trial in Special Term. The Circuit Court, in General Term, did examine the records in this case, and did go through the evidence to ascertain whether the verdict was in fact contrary to the evidence and the law, as stated in the defendant's motion for new trial. This comes directly within the province of the General Term. The main object of the Legislature, in providing for the General Term of the Circuit Court, was manifestly to establish a revisory tribunal, in which not only the action of the law, but the triers of the facts, may be reviewed in all those incidents and particulars where error may have or has occurred. The General Term may determine upon the weight of evidence whether the verdict should stand, and this court will not disturb such discretionary power, as a court of review was undoubtedly established to meet just such a case as this, and to relieve the Supreme Court of the labor, as much as possible, of reviewing evidence to ascertain whether the verdict ought to stand.

WAGNER, Judge, delivered the opinion of the court.

The examination of the record has convinced us that the only question necessary to be noticed is the action of the Circuit Court at General Term in reversing the judgment at Special Term because the verdict was against the weight of evidence.

It is unnecessary to here repeat the doctrine that is found throughout the whole range of our adjudications, that an appellate tribunal will not reverse simply because the verdict is against the weight of evidence, but that to justify such an interference there must be a total and complete failure of testimony tending to support the issue. The point, then, is, in what capacity the court in General Term acts and exercises its functions.

In the case of Tilford v. Ramsey, 43 Mo. 410, it was held that the Circuit Court of St. Louis county in General Term was an appellate court, like the District Courts outside of St. Louis county, and its decisions in regard to the action of the Circuit Court at Special Term should be governed by rules applicable to appellate courts. That decision we have no disposition to disturb, and it must be taken as giving a fixed and definite construction to the powers and character of the court in General Term under its peculiar organization.

But it is contended that the act approved March 4, 1869, has so altered the original law organizing the court that this power...