Parker v. Cassingham

• Citation: 130 Mo. 348,32 S.W. 487
• Parties: PARKER v. CASSINGHAM.
• Decision Date: 07 November 1895
• Court: United States State Supreme Court of Missouri

32 S.W. 487

130 Mo. 348

PARKER v. CASSINGHAM.

Supreme Court of Missouri, Division No. 1.

November 7, 1895.

EJECTMENT — TITLE TO SUPPORT — NEW TRIAL — REVIEW.

1. The granting of a new trial on the ground that the verdict was against the weight of evidence will not be reviewed, there not appearing to have been any abuse of discretion.

2. In ejectment, plaintiff must recover on the strength of his own title.

Appeal from circuit court, Carroll county; E. J. Broaddus, Judge.

Ejectment by Levi Parker against Oran Cassingham. A verdict for plaintiff was set aside, and new trial granted. Plaintiff appeals. Affirmed.

Jas. F. Graham and L. F. Waters, for appellant. Hale & Son and Jas. McCann, for respondent.

BRACE, C. J.

This is an action in ejectment to recover a strip of land 15 feet wide off of the south side of the S. W. ¼ of the S. W. ¼ of section 5, township 54, range 21, in Carroll county. The answer was a general denial. The verdict was for the plaintiff, which was set aside, and a new trial granted on motion of the defendant, on the following grounds, specified on the record, to wit: "Because the court erred in giving and refusing proper instructions"; "the verdict was against the law as declared by the court, and against the evidence."

1. One of the grounds specified for granting a new trial was that the verdict was against the evidence, which, we take it, is equivalent to saying that it was against the weight of the evidence. One of the issues submitted to the jury was whether the defendant had acquired title by adverse possession. Upon this issue the evidence was conflicting and uncertain. In such case this court has uniformly held that it would not on appeal review the evidence and determine its weight; that this is a question peculiarly within the province of the trial court, in the determination of which it has a large discretion, which we will not interfere with unless it plainly appears that injustice has been done, or the discretion has been unsoundly or arbitrarily exercised. Bank v. Armstrong, 92 Mo. 265, 4 S. W. 720. Nor should we do so any more in the case where the court grants a new trial upon this ground than in one where it refuses to do so. Bank v. Wood, 124 Mo. 72, 27 S. W. 554. We cannot say on the record in this case that this discretion has been abused.

2. The court refused an instruction asked by the defendant to the effect that the plaintiff must recover upon the strength of his own title, and submitted the case to...