Munn v. Garrett, 13029

CourtCourt of Appeal of Missouri (US)
Citation666 S.W.2d 37
Docket NumberNo. 13029,13029
PartiesRonald MUNN, Appellant, v. Lyle GARRETT, Respondent.
Decision Date23 February 1984

Page 37

666 S.W.2d 37
Ronald MUNN, Appellant,
Lyle GARRETT, Respondent.
No. 13029.
Missouri Court of Appeals,
Southern District,
Division One.
Feb. 23, 1984.

Page 38

Brad D. Eidson, Houston, for appellant.

Ronald D. White, Rolla, J. Max Price, Price & Beger, Salem, for respondent.

CROW, Judge.

Appellant ("Munn") appeals from an order granting respondent ("Garrett") a new trial. § 512.020, RSMo 1978. We affirm.

This suit arose from the purchase of two items by Munn from Garrett: (1) a farm tractor, to which were attached a front-end loader and a brush-hog, and (2) a goose-neck trailer. After the sale, Munn filed a two-count petition against Garrett. Count I alleged that Garrett, prior to the sale, knowingly made false representations to Munn about the tractor and its attachments; Count II alleged that Garrett warranted to Munn that the trailer was fit to carry a motor vehicle from California to Missouri, but that the trailer was in fact unfit for such purpose.

The cause was tried by the court, without a jury, on September 29, 1982. On that date, the court wrote this on the docket sheet: "Parties appear with their attorneys and announce ready for trial. Jury waived. Stipulation filed. Evidence heard. Stipulation considered. Arguments of counsel. Judgment for plaintiff on Count I for $500.00 and on Count II for $475.00 for a total judgment of $975.00. Costs taxed to defendant."

On October 12, 1982, a separate document designated "Judgment," bearing the court's signature, was stamped filed by the circuit clerk. On the same day, the notation "Judgment filed" was made on the docket sheet. Neither party questions the sufficiency of the document filed October 12, 1982, to constitute a judgment.

On October 14, 1982, Garrett filed a motion for new trial on both counts.

On November 9, 1982, the court heard counsels' arguments on Garrett's motion, and, on the same day, entered this order: "Motion for new trial sustained on the grounds that the verdict is against the weight of the evidence on both Counts I and II." This appeal followed.

Preliminarily, we note that although the order awarding the new trial recites that the "verdict" is against the weight of the evidence, there was no verdict in this case. A verdict is the definitive answer given by the jury to the court concerning matters of fact committed to the jury for its deliberation and determination. Delaney v. Gibson, 639 S.W.2d 601, 603 (Mo. banc 1982); State ex rel. Vogel v. Campbell, 505 S.W.2d 54, 56 (Mo. banc 1974). Inasmuch as no jury heard this case, there could be no verdict.

Secondly, we observe that no findings of fact were requested by either party and none were made by the court. Therefore, all fact issues are considered as having been found in accordance with the result reached. Rule 73.01(a)(2) 1; Hazlett v. Clark, 652 S.W.2d 135, 136 (Mo.App.1983).

The parties have treated the order of November 9, 1982, as a ruling by the court that its findings are against the weight of the evidence on both counts. A

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trial court has the power to award a new trial in a court-tried case on the ground that its findings are against the weight of the evidence. Rule 78.01; Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297, 300 (1937). Accordingly, we treat the trial court's order as if it had said the findings on both counts are against the weight of the evidence.

Munn's first point...

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20 cases
  • Serfass v. Warner, 13830
    • United States
    • Court of Appeal of Missouri (US)
    • March 7, 1986
    ...execution. The court's failure to embody its judgment in a formal judgment entry did not prevent its becoming effective. Munn v. Garrett, 666 S.W.2d 37, 39 The judgment is therefore final and appealable unless, as the plaintiff contends, remarks made by the trial court and the recital in th......
  • Weinbaum v. Weinbaum, s. 13446
    • United States
    • Court of Appeal of Missouri (US)
    • September 10, 1984
    ...the preparation of a formal judgment. Compare Orgill Bros. and Co., Inc. v. Rhodes, 669 S.W.2d 302 (Mo.App.1984); Munn v. Garrett, 666 S.W.2d 37 (Mo.App.1984). It was not a statement of intention to render a judgment. Marsden v. Nipp, 325 Mo. 822, 30 S.W.2d 77 (1930). Nor was the docket ent......
  • Heintz v. Hudkins, 17611
    • United States
    • Court of Appeal of Missouri (US)
    • January 29, 1992
    ...prepare a "judgment entry." It is thus arguable the docket entry of March 24, 1988, did not constitute a judgment. See Munn v. Garrett, 666 S.W.2d 37, 39 However, assuming arguendo that the docket entry of March 24, 1988, was a judgment, Plaintiff's reasoning--as we divine it--is that becau......
  • Marriage of Neal, In re, 14198
    • United States
    • Court of Appeal of Missouri (US)
    • September 12, 1985
    ...trial is limited to one of the grounds in a timely motion for new trial. Some of the recent cases so indicating include Munn v. Garrett, 666 S.W.2d 37, 39 (Mo.App.1984); Colley v. Tipton, 657 Page 94 S.W.2d 268, 271 (Mo.App.1983); and Stretch v. State Farm Mutual Automobile Insurance Co., 6......
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