Smith & Keating Implement Co. v. Wheeler

• Decision Date: 06 June 1887
• Citation: 27 Mo.App. 16
• Parties: SMITH & KEATING IMPLEMENT COMPANY, Respondent, v. HAMILTON WHEELER, Appellant.
• Court: Kansas Court of Appeals

27 Mo.App. 16

SMITH & KEATING IMPLEMENT COMPANY, Respondent, v. HAMILTON WHEELER, Appellant.

Court of Appeals of Missouri, Kansas City.

June 6, 1887

APPEAL from the Vernon Circuit Court, HON. CHARLES G. BURTON, Judge.

Reversed and remanded.

KIMBALL & JANUARY and G. S. HOSS, for the appellant.

I. Granting a new trial is largely discretionary with the trial court, but abuse of that discretion is reversible error. Fretwell v Laffoon, 77 Mo. 26.

II. Discretion is abused, if a new trial is granted when the evidence clearly preponderates in favor of the first verdict. Hicks v. Stone, 13 Minn. 434; Young v. Davis, 15 N.W. 174; Street Railway Co. v. Rheiner, 12 N.W. 449.

III. Clearly it is, then, error for a court to set aside a verdict of its own finding, in favor of the defendant, on the ground that the verdict is against the evidence, when the plaintiff has failed to make a prima facie case.

IV. If there is any element of negligence in the case, there can be no " " surprise," as the term is legally accepted, and, therefore, in such cases, it is an error to grant a new trial on that ground. Howell's Ex'r v. Howell, 37 Mo. 125; Fretwell v. Laffoon supra; Linard v. Crossland, 60 Am. Dec. 213.

V. A chattel mortgage recorded does not impart constructive notice unless the description of the property covered is such that it can be identified, with the aid of such inquiries as the instrument itself suggests; hence, there can be no constructive notice where the description is false. Jones' Chat. Mort. [2 Ed.] sect. 55, p. 53.

J. B JOHNSON, for the respondent.

I. The single proposition presented by the record, and brought to the attention of the court, is the granting of the new trial by the lower court, which the appellant assigns for error and respondent joins, and, in support of the action of the lower court, submits: (1) A motion for new trial is addressed to the sound discretion of the court, and, unless injustice has been done, or the discretion arbitrarily exercised or abused, appellate courts will not interfere. State v. Griffith, 63 Mo. 545, 551, and authorities cit.; Fretwell v. Laffoon, 77 Mo. 26. (2) The appellate court will not interfere, if there is any ground on which the trial court's action can be sustained. All assumptions are in favor of trial court. State ex rel. v. Adams, 84 Mo. 310, 317; Taylor v. Genail, 10 Mo.App. 250; Hess v. Clark, 11 Mo.App. 497. (3) Where there is failure of proof, it is proper to grant new trial. Simpson v. Blunt, 42 Mo. 542. (4) Mis. take, in matter of fact, is such surprise as entitles party to new trial. Hite v. Lenhart, 7 Mo. 22.

II. The error complained of is not reviewable in a proceeding like this. Mandamus is the proper remedy. Helm v. Bassett, 9 Mo. 51; Hill v. Watkins, 4 Mo. 86; Pratte v. Cabanne, 12 Mo. 194; Boyce v. Smith, 16 Mo. 317; State ex rel. v. Adams, 84 Mo. 310; Wight v. Railroad, 20 Mo.App. 480; Leahy v. Dugdale, 41 Mo. 517.

III. The matter is not properly before the court, as some motion should have been made, calling attention of the trial court to the alleged error, and in giving it an opportunity to correct the same. State ex rel. v. Burckhartt, 83 Mo. 430. If the appellant's theory be correct, it is to be presumed that the court granted the new trial under section 3703, of the Revised Statutes.

ELLISON J.

This is an action of replevin for a pony saw mill. There was a trial in the court below, in which the finding was for the defendant. Plaintiff filed a motion for a new trial, which was granted; to the granting of which defendant excepted, and made out and filed his bill of exceptions, and refused to take further part in the case, but elected to stand on his judgment. At the next term, the cause again came on for trial; defendant not appearing, judgment was rendered for plaintiff, from which defendant appealed to this court.

The error assigned is granting the plaintiff the new trial.

The motion for new trial contained only two causes: (1) Because the finding of the court sitting as a jury is against the law and the evidence, and contrary to the weight of evidence. (2) Because the plaintiff's attorney and agent was mistaken and surprised, and because one of the witnesses made a mistake in his testimony, which occasioned the finding of the court.

The new trial could not have been granted for the first cause alleged, for the reason that there could not have been any different finding under the testimony.

Plaintiff's testimony not only did not identify the property replevied as the property in its chattel mortgage, but its evidence established that it was not the same property.

The motion was unquestionably sustained for the second reason assigned.

In support of the second reason, plaintiff's attorney made and filed his affidavit to the effect that he was surprised and mistaken at the trial of said cause, in this: That, from the statement of opposing counsel, and the answer in the cause, he believed the only issue in the cause was as to the validity of the chattel mortgage, in relation to the sufficiency of the description; that he could have had sufficient testimony to prove his case, but for this belief that the additional testimony was not produced because the witness lived out of the jurisdiction of the court, and that he did not think it would have been doing justice to his clients to put them to the expense of procuring what, in his opinion, would be unnecessary testimony; that the case was conducted and argued on the theory that the " main point in the case was the validity of said mortgage, as aforesaid" ; that " Edwards was mistaken when he says in his deposition that he purchased the mill from Russell & Company, of Massillon, Ohio" ; that the judgment of the court was unjust, and worked a hardship on plaintiff; that if a new trial was granted, plaintiff would produce testimony to establish,...