Security Bank of Elvins v. Natl. Surety Co.
Decision Date | 03 August 1933 |
Docket Number | No. 30877.,30877. |
Citation | 62 S.W.2d 708 |
Parties | SECURITY BANK OF ELVINS, a Corporation, Appellant, v. NATIONAL SURETY COMPANY, a Corporation, and WILLIAM BRYAN COZEAN. |
Court | Missouri Supreme Court |
Appeal from Wayne Circuit Court. — Hon. E.M. Dearing, Judge.
AFFIRMED.
Davis & Damron and Thomas T. Fauntleroy for appellant.
(a) New trial should not be granted unless error was prejudicial to the substantial rights of the complaining party on the merits of the case. Ittner v. Hughes. 133 Mo. 679. (b) If the evidence is such that no verdict would be allowed to stand in favor of the party securing the new trial, the appellate court should reverse the trial court and remand with directions to enter judgment on the verdict Lead & Zinc Mining Co. v. Webster, 193 Mo. 351. (c) In such case the error of the trial court in sustaining the motion for new trial is an error of law. Alexander v. Allison, 224 S.W. (2d) 50.
Fordyce, White, Mayne & Williams and Edgar & Banta for respondents.
(1) The appellate court will sustain the action of the lower court in granting a new trial. Wise v. Rubenstein, 24 S.W. (2d) 203; Riche v. City of St. Joseph, 32 S.W. (2d) 578, 326 Mo. 710; Wight v. Mo. Pac. Railroad Co., 20 Mo. App. 481; Carnthersville v. Lloyd, 240 S.W. 838; Shovey v. Phillips, 7 S.W. (2d) 296; Walsh v. Telephone Co., 52 S.W. (2d) 839; Harris v. McQuay, 242 S.W. 1011; Fitzjohn v. St. Louis Transit Co., 81 S.W. 907, 183 Mo. 74; Birdsong v. Jones, 30 S.W. (2d) 1094, 225 Mo. App. 242; Glidewell v. Railroad Co., 204 S.W. 37; Barth v. Boyer, 27 S.W. (2d) 499; Chase v. American Press Brick Co., 31 S.W. (2d) 246; Collier v. Shelbyville, 219 S.W. 713; Stewart v. Carrothers, 37 S.W. (2d) 498; Lorenzen v. United Railways Co., 155 S.W. 30, 249 Mo. 182; Guthrie v. Gillespie, 6 S.W. (2d) 886, 319 Mo. 1137; Best v. Equitable Life Ins. Co., 299 S.W. 118; Pearce v. Rogers, 15 S.W. (2d) 874; Galeener v. Derris, 20 S.W. (2d) 167. (2) The giving of plaintiff's instruction was error. (3) Appellant could not recover in any event under the terms of the bond. First Nat. Bank v. Nat. Surety Co., 127 N.E. 479, 228 N.Y. 469; Hartford Accident Co. v. Tabler, 44 Fed. (2d) 780; American Bonding Co. of Baltimore v. Ballard County Bank's Assignee et al., 165 Ky. 63; Goffe v. Nat. Surety Co., 9 S.W. (2d) 938; Queen Incubator Co. v. Nat. Surety Co., 239 N.W. 815; Thompson v. American Surety Co. of N.Y., 42 Fed. (2d) 953.
The Security Bank of Elvins sued its former cashier, William Bryan Cozean, and the National Surety Company, maker of his surety bond, and obtained verdict and judgment against both defendants for $7624.49. Defendant National Surety Company filed motion for a new trial and from the circuit court's order sustaining this motion plaintiff has appealed. We quote as follows from appellant's statement of the facts which counsel for respondents say "is substantially correct and is satisfactory to the respondents herein":
Counsel for appellant contend that the trial court erred in sustaining the motion for a new trial "because both the facts and the law preclude a recovery by defendant, and there was no error in the trial;" while counsel for respondents insist that we should sustain the action of the trial court, that the giving of plaintiff's instruction was error, and that appellant could not recover in any event under the terms of the bond.
[1, 2] Since the trial court failed to specify any ground upon which it sustained the motion for a new trial, it will be assumed that the motion was sustained on each and every ground stated therein. [Gray v. City of Hannibal (Mo.), 29 S.W. (2d) 710, 713.] One of the grounds so stated was "because the verdict is against the evidence and against the weight of the evidence." Regardless of the seeming weight of the evidence opposed to the action of the trial court in setting aside a verdict of the jury on this ground, we do...
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