Miles v. Haney

• Decision Date: 19 May 1915
• Citation: 176 S.W. 429,190 Mo.App. 220
• Parties: J. S. MILES, Respondent, v. (L. F. HANEY, Defendant), H. R. HANEY, Interpleader, Appellant
• Court: Missouri Court of Appeals

176 S.W. 429

190 Mo.App. 220

J. S. MILES, Respondent, v. (L. F. HANEY, Defendant), H. R. HANEY, Interpleader, Appellant

Court of Appeals of Missouri, Springfield

May 19, 1915

Appeal from Texas County Circuit Court.--Hon. L. B. Woodside, Judge.

AFFIRMED.

Judgment affirmed.

Barton & Impey for appellant.

The interpleader was in possession of the property at the time the attachment writ was levied and the burden was on the plaintiff to show that he held a better title and right of possession than that claimed by the interpleader, whose possession under claim of ownership made a prima-facie case in his favor. Fair-banks-Morse Co. v. Stock Food Co., 151 Mo.App. 260, 263; Bank v. Boyer, 161 Mo.App. 143, 156; Pouder v. Colvin, 156 S.W. 483; Merrill Drug Co. v. Lusk, 73 Mo.App. 571, 575.

Hiett & Scott for respondent.

(1) In an interplea the burden is upon the interpleader to show that he was the owner of the specific property attached at the time it was attached, or that he had a special interest therein and was entitled to its possession. Torreson v Turnbaugh, 105 Mo.App. 439; Car Co. v. Banard, 139 Mo. 142; Bank v. Boyer, 161 Mo.App. 143. (2) A ruling of a trial court that the verdict is against the evidence is a decision that the verdict is against the weight of the evidence. Parker v. Cassingham, 130 Mo 348-350; Laclede Co. v. Tea Co. , 95 Mo.App. 412; McWilliams v. Railroad, 172 Mo.App. 318.

FARRINGTON J. Robertson, P. J., and Sturgis, J., concur.

OPINION

FARRINGTON, J.

On May 5, 1914, respondent, J. S. Miles, commenced an action against L. F. Haney for $ 147, alleged to be the balance due on the purchase price of a span of mules, by filing his petition and affidavit for attachment in the circuit court of Texas county. On the same day a writ of attachment was delivered to the sheriff who executed it by seizing the span of mules, then in the possession of H. R. Haney, the appellant. In due time, H. R. Haney filed an interplea claiming the mules were his at the time of the levy, and this issue was tried to a jury which returned a verdict in favor of the interpleader to the effect that the mules were his property at the time of the institution of the suit and that he was entitled to the possession of the same, and judgment was entered accordingly. However, the court sustained plaintiff's motion for a new trial and specified the following reasons therefor: "The verdict of the jury is against the evidence; and for further reasons one of the attorneys for interpleader made an improper argument in closing the case in which argument he stated that the Haney boys were worthy sons of a worthy sire, Henry Haney, and one of the best men who ever lived in Texas county and their testimony should be credited by this jury." It has been held that where the trial court rules that a verdict is "against the evidence," the ruling amounts to a decision that the verdict is against the weight of the evidence. [Parker v. Cassingham, 130 Mo. 348, 350, 32 S.W. 487; Laclede Power Co. v. Nash Smith Tea Co., 95 Mo.App. 412, 69 S.W. 27.]

So far as the abstract discloses, no instructions were asked or given except the customary instruction that nine of the jurors might agree on a verdict; hence the theory on which the jury considered the case is left to conjecture. We say this because practically all the testimony introduced was concerning the dispute between plaintiff and defendant--the plaintiff contending, consistently with his petition, that the transaction was a sale of the span of mules and that the purchase price of $ 215 was to be settled by defendant turning over a note for $ 58 which he claimed to own and paying the remainder in cash, and the defendant as strenuously insisting that the transaction was a trade of his jennet and the $ 58 note and $ 10 thrown in at the last as "boot." This condition of the record is perhaps attributable to the fact that the interpleader opened the case by placing his brother (the defendant) on the witness stand, and he went into all the circumstances.

The issue before us is between the interpleader, who complains because the new trial was granted, and the plaintiff who secured the order granting a new trial for the reasons specified. With such an issue the test may be thus stated: An order granting a new trial on the ground that the verdict is against the weight of the evidence should be sustained unless an abuse of judicial discretion appears, and it will not be disturbed, as for an abuse of discretion, if there is substantial evidence in the record in favor of, or such as will sustain, a verdict for the party to whom the new trial is granted. [Clarkson v. Garvey, 179 Mo.App. 9, 161 S.W. 664; Graney v. St. Louis, I. M. & S. Ry. Co., 157 Mo. 666, 57 S.W. 276.] "In other words, in such circumstances, if the case is one in which the proof tends to show a cause of action or a substantial defense which might on a fair trial be accepted by the jury and acted upon in favor of the party to whom the new trial is granted, the appellate court will decline to interfere. This rule obtains, of course, only in cases where there had been but one new trial awarded to the party and it was granted on the judgment of the trial court with respect to the facts in the case, for as to matters of law, such are always open to review." [Rigby v. St. Louis Transit Co., 153 Mo.App. 330, 133 S.W. 110; see, also, Metropolitan Lead & Zinc Co. v. Webster, 193 Mo. 351, 364, 92 S.W. 79; Seeger v. Silver Co., 193 Mo. 400, 407, 91 S.W. 1030.] Therefore, the question to be decided is this: Conceding all the facts to be as plaintiff shows them to be, and supposing the verdict of the jury was in his favor, could the verdict be permitted to stand?

It is now the settled rule of practice, also, that appellate courts are less disposed to reverse orders granting new trials than orders refusing them. [Parker v. Britton, 133 Mo.App. 270, 113 S.W. 259; Hopkins v. City of Springfield, 164 Mo.App. 682, 147 S.W. 1099; Allen v. Railroad, 167 Mo.App. 498, 151 S.W. 762.] Besides holding that appellate courts are reluctant to interfere in such cases, and that they will not interfere unless the discretion vested in the trial court appears to have been manifestly abused, it is, as is well said by the Supreme Court in the case of Lorenzen v. Railroad, 249 Mo. 182, 155 S.W. 30, a discretion appellate courts have encouraged trial courts in exercising to prevent a miscarriage of right. In Honea v. Railroad, 245 Mo. 621, 151 S.W. 119, the court after stating that the discretion would not be interfered with unless "unmistakably unwisely exercised," in quoting from McCarty v. Transit Co., 192 Mo. 396, 402, 91 S.W. 132, also adopted the following language appearing in the opinion: "The trial judge stands peculiarly close to the fountain-head of legal justice. He is the high priest presiding at the very altar of the temple. To him it is given to hear the intonation of the voice of a witness, to see his manner, his cast of countenance, the glance of his eye, the behavior of the jury, their intelligence, their attention and the whole network of small incidents creating an atmosphere about a case and tending possibly to a perverted result or otherwise, none of which can be preserved in the bill of exceptions and sent here, and in him, therefore, should exist the courage to prevent a miscarriage of right. His viewpoint is entirely different from that of an appellate court." Again, it is held that trial courts, in reviewing verdicts, are not subject to the same rules that govern appellate courts, and that they may weigh the evidence, and, if they think injustice has been done, grant a new trial, in cases where they would not be justified in taking an issue from the jury, and where appellate courts should not interfere. [Lockwood v. Atlantic Mut. Ins. Co., 47 Mo. 50.]

It will be noted that all these cases require that there be some substantial evidence upon which a verdict in favor of the party securing the new trial could be based, as distinguished from "a mere shadow or scintilla of testimony," which would not entitle plaintiff to go to the jury. [See Haven v. Railway Co., 155 Mo. 216, 55 S.W. 1035.]

The repetition in this opinion of the foregoing well-settled principles in our practice is to be excused by the fact that respondent in his brief lays stress upon them and we do not wish to be considered as affirming this judgment without giving them full weight.

The issue in the trial court was as to whether or not the interpleader had title to the span of mules, and the affirmative of that issue was on the interpleader. [Merrill Drug Co. v. Lusk, 73 Mo.App. 575.] Under section 2345, Revised Statutes 1909, providing for interpleas in attachment suits, the plaintiff in the attachment assumes the position of a defendant and the interpleader acts as a plaintiff. [Gate City National Bank v. Boyer, 161 Mo.App. 143, 142 S.W. 487.]

The interpleader in our case properly assumed the burden of proving his title to the mules. As before stated plaintiff's theory was that he had sold the mules to the defendant. His position, therefore, necessarily was that defendant obtained title to the mules. Indeed, it is held that by bringing the attachment suit, he affirmed the sale and took the place of a creditor. [Johnson-Brinkman Com. Co. v. Railway Co., 126 Mo. 344, 28 S.W. 870.] Appellant argues that since he was in possession of the property at the time of the levy of...