Sharp v. Odom

• Decision Date: 05 November 1906
• Parties: SHARP v. ODOM.
• Court: Missouri Court of Appeals

97 S.W. 225

121 Mo. App. 565

SHARP v. ODOM.

Kansas City Court of Appeals. Missouri.

November 5, 1906.

APPEAL—HARMLESS ERROR—DECISION ON MOTION FOR NEW TRIAL.

The failure of the trial court to comply with Rev. St. 1899, § 801, requiring the court to state in the order allowing a new trial the ground or grounds on which it is granted, is no ground for reversal, when it appears that the motion could be sustained on any ground set forth therein.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by Mrs. J. M. Sharp against Mrs. P. W. Odom. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

M. R. Lively, for appellant. E. F. Keyton, for respondent.

JOHNSON, J.

Plaintiff sued in replevin in a justice court to recover possession of a milch cow. The case was appealed to the circuit court, where it was tried before a jury, resulting in a verdict for plaintiff. Defendant in due time filed a motion for a new trial in which a number of grounds were specified, among them the ground that the verdict was against the weight of the evidence. The court sustained the motion, without assigning any reason for its action, and plaintiff appealed.

Section 801, Rev. St. 1899, requires the trial court to state in the order allowing a new trial the ground or grounds on which it is granted; but it has been held repeatedly that the failure to comply with this provision is no ground for a reversal of the judgment. In such case, if the action of the trial court in sustaining the motion can be sustained on any ground set forth therein, the appellate court should not disturb the order. Roman v. Boston Trading Co., 87 Mo. App. 186; Bank v. Wood, 124 Mo. 72, 27 S. W. 554; Hewitt v. Steele, 118 Mo. 463, 24 S. W. 440; Smith v. Sedalia, 152 Mo. 283, 53 S. W. 907, 48 L. R. A. 711; Haven v. Railway, 155 Mo. 216, 55 S. W. 1035; Metropolitan v. Webster (Mo. Sup.) 92 S. W. 79. Respondent has filed no brief and as appellant's brief does not advise us of the ground on which the new trial was granted, we have carefully examined the whole record to ascertain if the order may be sustained on any ground assigned in the motion. We do not find that any error of law was committed by the learned trial judge in the trial of the cause; and, as there was a serious conflict in the evidence relating to material issues of fact, which was sent to the jury under proper instructions, we assume that the verdict was set aside on the ground that it was against the weight...