Nordmanser v. Hitchcock

• Decision Date: 31 March 1867
• Citation: 40 Mo. 178
• Parties: HARRY NORDMANSER, Appellant, v. BUEL T. HITCHCOCK, Respondent.
• Court: Missouri Supreme Court

40 Mo. 178

HARRY NORDMANSER, Appellant,

v.BUEL T. HITCHCOCK, Respondent.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Circuit Court.

Cline & Jamison, for appellant.

I. “Where the party or his counsel are absent through misapprehension or necessity, and the cause goes to the jury undefended, and there are merits, the court will relieve by setting aside the verdict”--1 Gra. & Wat. New Trials, 162; Rex v. Tracy, 2 Strange, 1208; Schenck v. Woolsey, 3 Cai. (N. Y.) 100; 2 Salk. 645; Beazley v. Shapleigh, 1 Price, 201; Peebles v. Ralls, 1 Litt. (Ky.) 24; Sayer v. Finck, 2 Cai. 336; Sherrard v. Olden, 1 Halst. (N. J.) 344; Stewart v. Dunett, 3 Mon. (Ky.) 113; Honore v Murray, 3 Dana, 31; Turner's adm'r v. Hooker, 2 Dana, 334.

Sharp & Broadhead, for respondent.

I. The action of the court was correct in trying the case when called for trial. The plaintiff waived a trial by jury by failing to appear at the trial, and defendant submitted it to the court.--R. C. 1855, p. 1261, § 14.

II. The motion for new trial was not filed in time to be entertained or heard by the court. Section 6 of R. C. 1855, p. 1286, is imperative that all motions for a new trial, and in arrest of judgment, shall be filed within four days after the trial, if the term so long continue; and if not, before the end of the term. The motion should have been therefore overruled, and might have been stricken out.

III. Under any view of the question, this court will not interfere with the exercise of the discretion of the court below, even if it could be claimed that it was a matter of discretion with that court.--Allen et al. v. Brown, 5 Mo. 327; Jacobs v. McLean, 24 Mo. 40.

WAGNER, Judge, delivered the opinion of the court.

This was an action instituted for the purpose of recovering judgment against the defendant for an amount of money which the plaintiff alleged he had over-paid on a contract for the sale and delivery of corn. The defendant in his answer denied that he owed plaintiff anything, but averred that he had not received all that was due for the corn delivered, and claimed the balance due him as an off-set; and also stated that he had been damaged to the amount of $5,000 by reason of the plaintiff refusing to take the corn according to the contract, which had depreciated in value and deteriorated on his hands, which latter sum he pleaded as a counter-claim. The petition was filed and the writ made returnable to the September term, 1865, of the St. Louis Circuit Court, which commenced on the last Monday in the month, and the answer and counter-claim of the defendant were filed on the 2d day of October next succeeding. On the 7th day of November, 1865, plaintiff was permitted to file his replication without objection, the cause was regularly set for trial, and when it was called the plaintiff did not appear; the defendant announced himself ready, and the court, upon hearing the proof adduced, gave judgment for defendant for the full amount asked in his set-off and counter-claim. On the 15th of December thereafter, plaintiff filed his motion for a new trial, supported by the affidavit of Mr. Mills, his attorney, which motion was overruled by the court, and an appeal prayed for and allowed.

The only question made is whether the court abused its discretion in not granting a new trial. The affidavit of Mills, which accompanied the motion for a new trial, states that he was taken ill about the middle of September, 1865, and from that time till the 26th day of October was confined to his room, a portion of the time to his bed, and was wholly unable to attend to business; that after the last day mentioned he was able to attend to very little business; that while he was ill in his room he requested Mr. J. C. Dodge, a member of the bar, to visit Mr. Sharp, the defendant's attorney, and request additional time to file a reply on account of illness. Mr. Dodge called at the office of Mr. Sharp, and, not finding him in, stated the fact to the person in charge of the office, who replied that of course such a request would be granted as an act of common courtesy between members of the bar; that he supposed nothing more would be done with the case until he had recovered, and that it would not be set for trial; that when he was able to attend to his business a portion of the time, he put in his reply, and employed the services of Mr. Dodge as attorney, and sent him twice to examine the legal docket to see if the cause was set for trial, and after examination Mr. Dodge reported that it was not; that relying on this information as correct, and having previously supposed that nothing would be done until his recovery, he remained ignorant of the fact that it was set for trial and was not present when it was called. He further states that the plaintiff is a nonresident and had entrusted the entire management of the case to him, and that he believed plaintiff had a meritorious cause.

This court is never inclined to interfere with the discretion of the inferior courts in their action in refusing to grant new trials, unless a strong case is made out showing a palpable abuse of a sound discretion, and where the injustice complained of is not traceable to the negligence of the party asking us to intervene. When a cause is regularly docketed and set for trial, it is no excuse for the party who has suffered that his attorney was absent or did not attend to it--Stout v. Calvert, 6 Mo. 254; Steigers v. Darby, 8 Mo. 679; Jacob v. McLean, 24 Mo. 40. If courts should permit such a cause to be set up, there would be no certainty in trials and no end to litigation. It is the duty of the party to...