Mercantile Bank v. Hawe

• Decision Date: 11 December 1888
• Parties: MERCANTILE BANK, Appellant, v. JOHN HAWE, Administrator, Respondent.
• Court: Missouri Court of Appeals

33 Mo.App. 214

MERCANTILE BANK, Appellant, v. JOHN HAWE, Administrator, Respondent.

Court of Appeals of Missouri, St. Louis.

December 11, 1888

Appeal from the St. Louis City Circuit Court. --HON. JAMES A SEDDON, Judge.

AFFIRMED.

M E. F. Pollack, for the appellant.

The court should not have admitted evidence that the note, upon which the judgment was obtained, had been paid, or in its decree have been governed thereby. The court should have granted the new trial on account of the discovery of new evidence. The court should have granted a new trial on account of the mistake of witness Kraft in regard to the fifty-dollar deposit certificate. R. S., sec. 3704.

Rowe & Morris, for the respondent.

This court will not weigh the evidence, and if there is any evidence to support the finding and judgment of the lower court, its finding and judgment cannot be disturbed on appeal. " The refusal of the trial court to grant a new trial on the ground of newly-discovered evidence, is not ground for reversal unless it clearly appears that the court abused its discretion in the matter." Franklin v Holle, 7 Mo.App. 241. " Motions for a new trial, on the ground of newly-discovered evidence, are regarded with a jealous eye and construed with remarkable strictness by the courts; they should be tolerated, not encouraged, viewed with aversion rather than favor, granted as an exception and refused as a rule." Cook v. Railroad, 56 Mo. 380. " A party is not entitled to a new trial on the ground of newly-discovered evidence, when such evidence was accessible to him before the trial." Maxwell v. Railroad, 85 Mo. 95. The affidavit must show that due diligence was used to discover the evidence before the trial. 58 Mo. 107; 77 Mo. 52; 14 Mo.App. 596.

OPINION

ROMBAUER P. J.

In October, 1887, the plaintiff exhibited in the probate court of the city of St. Louis for allowance against the estate of Wm. Hawe, a judgment recovered by it in October, 1876, against said Hawe for $643.32, bearing interest at the rate of ten per centum per annum. The probate court, upon hearing, rejected the claim. The plaintiff appealed, and upon hearing of the case in the circuit court, by the court without a jury, judgment was again rendered in favor of the defendant, and the plaintiff appeals.

The plaintiff gave in evidence a certified copy of the judgment and rested. The defendant adduced testimony tending to show the following facts: Immediately after the rendition of the judgment the defendant Wm. Hawe, accompanied by a witness, called on the plaintiff bank and claimed that the judgment was unwarranted because the note upon which it was founded was paid. This claim was made to plaintiff's then cashier, who did not deny the fact, but simply claimed that the bank had incurred some expense in obtaining the judgment, for which it should be reimbursed. The defendant Hawe thereafter, and until his decease in 1883, continued to reside in the city, was engaged in an extensive business, and was perfectly solvent, being possessed of real estate in the city, on which, beyond all incumbrances, there was a margin of seventy-five hundred dollars, which was subject to this judgment lien.

This evidence was not rebutted in any way. The plaintiff's then cashier was not even called as a witness, nor was it shown that he was dead or that his testimony was inaccessible. All the evidence was admitted without objection and no instructions were asked or given.

The only errors complained of in the ...