Parker v. Britton

• Decision Date: 05 November 1908
• Citation: 113 S.W. 259,133 Mo. App. 270
• Parties: PARKER et al. v. BRITTON.
• Court: Missouri Court of Appeals

113 S.W. 259

133 Mo. App. 270

PARKER et al. v. BRITTON.

St. Louis Court of Appeals. Missouri.

November 5, 1908.

1. NEW TRIAL (§ 110) — GROUNDS — JUDICIAL POWER.

A new trial may be allowed on a ground not assigned therefor.

2. NEW TRIAL (§ 91) — GROUNDS — SCOPE — MISTAKE OF COUNSEL.

In passing on a motion for new trial, a court is not restricted to the statutory causes; but, if a new trial be allowed for one of them — e. g., a mistake of counsel — it should be such a mistake as the statute intends, and not forgetfulness or neglect.

3. APPEAL AND ERROR (§ 977) — DISCRETION OF LOWER COURT — NEW TRIAL.

Trial judges have a very wide discretion to grant new trials to accomplish justice, and their orders will not be reversed, unless abuse of discretion plainly appears.

4. APPEAL AND ERROR (§ 977) — REVIEW — ORDERS RESPECTING NEW TRIAL.

Appellate courts are less disposed to reverse orders granting new trials than orders refusing them.

5. ATTORNEY AND CLIENT (§ 88) — ATTORNEY'S NEGLECT — CLIENT'S RESPONSIBILITY.

An attorney's neglect is in law the client's.

6. NEW TRIAL (§ 91) — RIGHT TO — OVERSIGHT.

It was an abuse of discretion to allow plaintiffs a new trial on a nominal verdict in their favor, to enable them to offer evidence, forming a basis for material recovery, which was omitted through their counsel's mistake or oversight, where defendant was not responsible for the oversight, and would be put to expense and inconvenience by a new trial.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Action by D. H. Parker and others against D. H. Britton. From an order granting plaintiffs a new trial on a nominal verdict, defendant appeals. Reversed and remanded, with directions.

Henry B. Davis, for appellant. W. H. Douglas, for respondents.

GOODE, J.

This appeal was taken from an order of the circuit court granting a new trial to respondents. The action was instituted by attachment, and the attachment was sustained on the ground of appellant's nonresidence in this state, he being a citizen of the state of Louisiana. On August 10, 1906, he and respondents, who are also citizens of Louisiana, and real estate agents, entered into a contract, by which he intrusted to them the sale of the merchantable timber, cypress, cottonwood, and ash on about 5,000 acres of land in that state for the price of $40,000 net to appellant, respondents to have for their commission whatever excess of that price was obtained. It was further stipulated appellant himself might deal with any party to whom respondents had not previously submitted a proposition, and in case he sold to a party whom they had introduced, their commission should be as above stated, unless the price fell below $42,500, in which contingency the commission should be 5 per cent. of the price. The petition alleges respondents began a negotiation for the sale of the timber with C. F. Liebke, informed appellant of the fact, introduced him to the purchasing agents of Liebke, when appellant took up the negotiation in person, and sold to Liebke for $31,500, whereby respondents became entitled to a commission of $1,575. In his answer appellant admitted the execution of the contract, but denied the other averments of the petition. Respondents gave proof that they, through their agent in St Louis, drew the attention of Liebke, or rather the Liebke Hardwood Lumber Company, to the timber, and introduced Kirk, purchasing agent of said company in Louisiana, to appellant; and a letter written by appellant to respondents' attorney, under date of October 30, 1906, was put in evidence, from which it may be inferred appellant sold the land to the Liebke Company. At the conclusion of the testimony verdict and judgment for one cent damages were rendered in favor of respondents, who filed a motion for new trial on certain grounds we will not recite, because no point is made about them on the appeal. The motion passed over to the next term of court, and was then sustained, for the reason "that the cause should be more thoroughly presented to the court and a judgment rendered for plaintiffs in a substantial sum, or for defendant."

Both sides concede respondents omitted to prove the quantity of timber sold and the price received, thereby failing to afford any way to ascertain what amount of commission they were entitled to, that for said omission, and in order to permit proof of the amount of the price received by appellant, the court sustained the motion, and that the only question for decision is whether or not this order was an abuse of the trial court's judicial discretion. The ground on which the new trial was granted was not one of those assigned in the motion; but a court may, if it sees proper, go outside the reasons for new trial assigned by a defeated party and allow it on some other ground. Stannard Mill. Co. v. Transit Co., 122 Mo. 258, 26 S. W. 704; Lovell v. Davis, 52 Mo. App. 342. Our statutes provide several causes for which a court may allow a new trial: Mistake or surprise of a party or his attorney, misdirection or mistake of a jury, a finding contrary to the court's direction, fraud or deceit practised by one party on the other, and perjury of a witness. Rev. St. 1899, § 800 (Ann. St. 1906, p. 761). And in this state the court is not restricted to the causes enumerated in the statute. Leahy v. Dougdale, 41 Mo. 517. But if a new trial is allowed for one of those causes, say a mistake of counsel, as in the present case, it ought to be such a mistake as the statute intends, and not forgetfulness or neglect. Fretwell v. Laffoon, 77 Mo. 26, 30. In Bright v. Eynon, 1 Burr. 395, Lord Mansfield said the best general rule on the subject is the one laid down by Lord Parker in Regina v. Helston; i. e., that a new trial should be granted for attaining the justice of the case. See, too, U. S. v. Merchandise, 2 Spr. (U. S.) 85, Fed. Cas. No. 15,964; 14 Ency. Pl. & Pr. 718. Trial judges have a very wide discretion to grant new trials in order to accomplish justice, and their orders will not be reversed, unless an abuse of discretion plainly appears. Longdon v. Kelly, 51 Mo. App. 572; Ensor v. Smith, 57 Mo. App. 588; Whitsett v. Ransom, 79 Mo. 258. In view of the strong colors in which this discretion has been depicted by courts of review, our first thought was that the ruling of the court below in the present case must be approved, especially as it allowed a new trial; for appellate tribunals are less disposed to reverse orders granting new trials, and thereby leaving the controversy to be examined again judicially, than orders of refusal which foreclose redress if wrong has been done. The defect of proof in this cause must be charged against respondents themselves or their attorneys, and in either event the result is the same, because the neglect of their attorneys is, in law, their own. Biebinger v. Taylor, 64 Mo. 63, 66. Yet our impression was that a trial court's discretion included the right to allow another trial if justice had miscarried on account of the oversight of counsel, as indeed, has been decided in some states. Greene v. Farlow, 138 Mass. 146; Brock v. Railroad, 65 Ala. 79; and see on this point, also, 14 Ency. Pl. & Pr. p. 732 et seq. But an examination of the decisions of the appellate courts of this state has yielded the conclusion that the opposite rule prevails here, at least on facts like those before us.

The Missouri cases cited supra declare as strongly as those of other jurisdictions in favor of large power in the trial court to grant new trials, yet the opinions consistently condemn such an exercise of discretion on the exact facts presented by this appeal; that is, condemn the allowance of another trial because of a mistake or oversight of counsel for the defeated party. In most of the cases the relief asked had been refused by the lower court, and the question on appeal was whether the ruling should be upheld; but the tone of the opinions would deny power to a trial court to grant a new trial for the negligent mistake or inadvertence of a party or his counsel though the party thereby had been cast in heavy damages. Field v. Matson, 8 Mo. 686; Kerby v. Chadwell, 10 Mo. 392; Austin v. Nelson, 11 Mo. 192; Webster v. McMahan, 13 Mo. 582; Jacob v. McLean, 24 Mo. 40; Ridgley v. Steamboat, 27 Mo. 442; Gehrke v. Jod, 59 Mo. 522; Biebinger v. Taylor, 64 Mo. 63; Fretwell v. Laffoon, 77 Mo. 26; State v. Dreher, 137 Mo. 11, 38 S. W. 567; Tittman v. Thornton, 107 Mo. 500, 510, 17 S. W. 979, 16 L. R. A. 410; Meyer v. Construction Co., 2 Mo. App. 599; Bowman v. Field, 9 Mo. App. 576: Miller v. Miller, 13 Mo. App. 591; State v. Jones, 12 Mo. App. 93; Smith v. Wheeler, 27 Mo. App. 16; and see ...