State ex rel. Albers v. Horner

• Decision Date: 30 April 1885
• Citation: 86 Mo. 71
• Parties: THE STATE ex rel. ALBERS et al. v. HORNER, Judge, Appellant.
• Court: Missouri Supreme Court

86 Mo. 71

THE STATE ex rel. ALBERS et al.

v.HORNER, Judge, Appellant.

Supreme Court of Missouri.

April Term, 1885.

Appeal from St. Louis Court of Appeals.

REVERSED.

Noble & Orrick for appellant.

(1) The statute, regarding new trials, does not apply to a new trial which is granted for error of the trial court in giving instructions to the jury, and where such error has induced an erroneous verdict, such new trial is not counted. Boyer v. Smith, 16 Mo. 351. The facts in this case are different from those in State ex rel. Wright v. Adams, 76 Mo. 606. (2) The issues in this case were substantially changed, after the first trial and before the last one, by amendment of plaintiff's petition, and the last trial was had on the issues as made by the amended petition and answer, and the statute in relation to new trials did not apply. (3) It must appear affirmatively in the pleadings from facts stated that the court improperly granted the second new trial, otherwise the writ must be denied. State v. Governor, 39 Mo. 400; Curry v. Coblins, 37 Mo. 330; 68 Mo. 48; 65 Mo. 489.

W. C. Marshall for respondent.

The new trial granted in the second instance was not asked upon either of the grounds warranted by the statute, and the court had no power to grant it for any other reasons. State ex rel. Wright v. Adams, 76 Mo. 606.

NORTON, J.

This case is before us on defendant's appeal from the judgment of the St. Louis court of appeals, awarding a peremptory writ of mandamus to compel W. H. Horner, judge of the circuit court of the city of St. Louis, to enter up judgment on the verdict of a jury in the case of C. H. Albers et al. v. Banking House of Bartholow, Lewis & Co., pending in said court. The application for the writ is based upon the following facts, viz.: The said cause was tried in said court in June, 1877, the jury returning a verdict for plaintiffs, assessing their damages at $1,500, which verdict was set aside and a new trial granted to defendant; that in the year 1879 the cause was again tried in said court, resulting in a mis-trial, the jury failing to agree; that thereafter, on the twenty-second day of March, 1881, the cause was again tried in said court before a jury, which terminated by the jury returning into court a verdict for plaintiffs, and assessing their damages at $3,500, which verdict was received by the court; that thereafter defendant filed a motion to set aside said verdict and grant a new trial, whereupon the court entered an order to the effect that the motion would be overruled, if plaintiffs within five days would enter a remittitur for the sum of $1,500, and if said remittitur was not so entered, the motion would be sustained. This proceeding was instituted to compel said judge to enter up judgment on the verdict as returned by the jury.

That mandamus in such a case is the appropriate remedy, is established by the following cases: Hill v. Wilkins, 4 Mo. 86; Boyce v. Smith, 16 Mo. 317; 41 Mo. 517; State ex rel. v. Wright, 76 Mo. 605. The respondent, in his return to the alternative writ, sets up the fact that he sustained the first motion for a new trial on the verdict rendered in 1877, on the sole grounds that the instructions given by him at the instance of plaintiff were erroneous, and misled the jury; and that this was well understood at the time from a written opinion then delivered. To this return a demurrer, which admitted the facts therein stated, was interposed, which was sustained, and the mandatory writ awarded. And it is from this action that respondent has appealed. The relators, to sustain this action of the St. Louis court of appeals, invoke section 3,705, Revised Statutes, which provides as follows: “Only one new trial shall be allowed to either party, except: First, where the triers of the fact shall have erred in a...