McShane v. Sanderson

• Decision Date: 22 February 1892
• Citation: 18 S.W. 912,108 Mo. 316
• Parties: McShane, Appellant, v. Sanderson, Administrator
• Court: Missouri Supreme Court

18 S.W. 912

108 Mo. 316

McShane, Appellant, v. Sanderson, Administrator

Supreme Court of Missouri, First Division

February 22, 1892

Appeal from Audrain Circuit Court. -- George Robertson, Esq. Special Judge.

Affirmed.

F. B Minahan and Elijah Robinson for appellant.

(1) The court should have considered the question as to whether the verdict of the jury was against the weight of evidence in passing on plaintiff's motion for a new trial. The record entry made by Judge Hughes, after Mr. Robertson had been selected and qualified as special judge, should not have prevented the consideration of that question. A special judge having been selected, Judge Hughes had no more authority to make any order in this case than if his official term had expired. Dawson v. Dawson, 29 Mo.App. 521. (2) The court had no right, at a subsequent term, to alter or amend the record, "from facts in the breast of the judge," and without any minute, record or paper showing what the entry should have been. Fetters v. Baird, 72 Mo. 389; Atkinson v. Railroad, 91 Mo. 50; Gamble v. Dougherty, 71 Mo. 599; Belkin v Rhodes, 76 Mo. 643; State v. Jeffors, 64 Mo. 376; Dunn v. Roley, 58 Mo. 134; Priest v. McMaster, 52 Mo. 60; Saxton v. Smith, 50 Mo. 490. (3) The fact, that the record entry was not such as required by the statute, did not authorize the court to correct it at a subsequent term, from the judge's mere recollection of what he intended it to be. Wooldridge v. Quin, 70 Mo. 370.

W. H. Morrow for respondent.

Black J. Barclay, J., absent.

OPINION

Black, J.

The plaintiff had two demands allowed against the estate of George H. Hogue by the probate court of Pike county, one a note for $ 1,300 and interest, and the other an account for $ 3,006.90. The administrator appealed to the circuit court of that county, and after two mistrials the venue of the cause was changed to Audrain county. Proceedings were had in the circuit court of that county at the following terms and in the following order: October term, 1887. The cause was tried before Judge Hughes and a jury, which resulted in a verdict for the plaintiff on the note, and a verdict for the defendant on the account. In due time plaintiff filed a motion for new trial.

January term, 1888: The motion for new trial was sustained, but the order as then made did not state the grounds upon which the motion was granted. Judge Hughes then declined to further hear the cause, and the parties agreed upon Mr. Robertson as special judge. The cause was then tried before him and a jury, which trial again resulted in a verdict and judgment for the plaintiff on the note and a verdict and judgment on the account for defendant. Plaintiff again filed a motion for new trial, alleging therein, among other things, that the verdict was against the weight of the evidence. The defendant filed a motion to correct the prior entry made by Judge Hughes, sustaining the first motion for new trial, so as to show upon what grounds it was sustained.

June term, 1888: The motion to correct the record entry was heard by Judge Hughes and sustained, and the record corrected so as to state that the first new trial was granted on the ground that the verdict was against the weight of the evidence. The special judge then heard and overruled the second motion for new trial, and in doing so the record says he refused to consider the ground therein stated that the verdict was against the weight of the evidence, because a former like motion filed by the plaintiff had been sustained on that ground.

The bill of exceptions taken before the special judge does not set out the evidence. It simply shows that plaintiff offered evidence tending to prove the issues on his part, and defendant offered evidence tending to support the defense which was a denial of the plaintiff's alleged causes of action. The errors assigned in this court are these: "First, the court, Hon. E. M. Hughes, committed error in passing on the motion to correct the record after the selection of a special judge; second, the court committed error in amending the entry sustaining the first motion for a new trial; third, the court committed error in declining and refusing to consider the ground alleged in the motion for a new trial to the effect that the verdict was against the weight of the evidence."

In the view we take of this case it is not necessary to consider the first and second alleged errors. It will be assumed that Judge Hughes had no right or power to hear the motion to correct the record after a special judge had been selected to try the cause. The order made by Judge Hughes will be treated as a void order and hence out of the record.

The only remaining objection is this, that in overruling plainti...