State ex rel. Brainerd v. Adams

• Decision Date: 31 October 1884
• Citation: 84 Mo. 310
• Parties: THE STATE ex rel. BRAINERD v. ADAMS, Judge.
• Court: Missouri Supreme Court

84 Mo. 310

THE STATE ex rel. BRAINERD

v.ADAMS, Judge.

Supreme Court of Missouri.

October Term, 1884.

Appeal from St. Louis Court of Appeals.

REVERSED.

Pattison & Crane and P. Wm. Provenchere for appellant, ADAMS.

(1) All the parties in interest are not before the court; Patier, the plaintiff in the original suit, who is the party most directly interested, not having been made a party to the mandamus proceeding. People v. Farquer,Breese 73; State v. Mills, 27 Wis. 403; High on Extr. Leg. Rem., sec. 9, and notes. (2) The prayer of the petition, which is to be taken as the mandatory part of the writ, is indefinite, and lacking in accuracy; it cannot be determined from that alone what judgment is to be rendered. Tapping on Mand., p. *322-326. (3) The relator must show a right to the specific thing asked or commanded, and that must be due of the respondent. High on Extr. Leg. Rem., secs. 9, 10, 522; People v. Mayor, 51 Ill. 17, 28; People v. Hatch, 33 Ill. 140; Ex parte Bell, 48 Ala. 285; 3 Black. Com. pp. 389-390. (4) A motion to quash is the proper mode of bringing to the consideration of the court the merits and the informalities of the writ. Tapping on Mand., p. *336-7; High on Ext. Leg. Rem., secs. 521-24. (5) The power to grant new trials is inherent in courts of general jurisdiction, except so far as it is controlled by statute. McNamara v. Railroad, 12 Minn. 394; Bartling v. Jamison, 44 Mo. 141; Schultz v. Ins. Co., 14 Fla. 93; Ex parte Bacon, 6 Cowen 392. This is admitted in the opinion of the court below. (6) The court has power to order a new trial on its own motion. Williams v. Circuit Court, 5 Mo. 248; Richmond v. Wardlaw, 36 Mo. 313; Simpson v. Blunt, 42 Mo. 542; Mills v. Scott, 99 U. S. 25; Ex parte Henry, 24 Ala. 648; 3 Black. Com. 389; Gould v. Tatum, 21 Ark. 330, where it is held that the statutes “regulating” the exercise of this power are directory only. It can make no difference whether the errors committed on the trial are brought to the attention of the court by the parties, by being embodied in a written motion, or are so apparent as not to escape the court's own notice. (7) The trial court may grant a new trial for errors not mentioned in the motion. It is only the appellate court that is precluded from this. Fine v. Rogers, 15 Mo. 315; Leahy v. Dugdale, 41 Mo. 517. (8) There is no intelligible issue presented by the pleadings in the case of Patier v. Brainerd, and they are insufficient to support a verdict. There is nothing to show that the circuit court abused its discretion, and this court will presume that the action of the nisi prius court was proper. Goode v. Crow, 51 Mo. 212; McGregor v. Christie, 37 Ga. 557; Meriman v. Atlanta, 61 Ga. 222; Corteleyon v. Ten Eyck, 22 N. J. Law 45. (9) The writ of mandamus should not be granted to compel a technical compliance with the strict letter of the law in disregard of its real spirit. High on Ex. Rem., p. *13, sec. 9. (10) If the court of appeals was right in overruling the motion to quash the alternative writ, it had the power to fix the terms upon which its action should be granted. State v. Rombauer, 44 Mo. 592; State v. Knight, 46 Mo. 83; Const. of Mo., art. 6, sec. 12; Tapping on Mandamus, *p. 336.

W. C. Marshall and Phillips & Stewart for relator.

I. (1) Courts of general jurisdiction had no power to order new trials on their own motion even at common law. 2 Sharswood's Blackstone (2d Ed.) top p. 389, and notes; 1 Graham & Waterman on New Trials, pp. 6 and 9; Williams v. Circuit Court, etc., 5 Mo. 248. (2) The circuit courts of this state have no power to set aside verdicts of their own motion. R. S., secs. 3704, 3703, 3633, and 3557; Bartling v. Jamison, 44 Mo. 141; State v. Rombauer, 44 Mo. 595; Lloyd v. Brinck, 35 Tex. 1. The law is well settled that the grounds named in the motion for new trial are the only ones to be considered in determining the correctness of the court's action in granting or refusing a new trial. Cowan v. R. R., 48 Mo. 556; Brady v. Connelly, 52 Mo. 19; Matlock v. Williams, 59 Mo. 105; Carver v. Thornhill, 53 Mo. 283; Lancaster v. Ins. Co., 62 Mo. 121. (3) If the circuit court has power in any case to set aside a verdict of its own motion, its action in the present instance was not the exercise of sound discretion. (4) Mandamus is the proper remedy for the wrong complained of by relator. Hill v. Watkins, 4 Mo. 86; Pratte v. Cabanne, 12 Mo. 194; Lloyd v. Brinck, 35 Tex. 1; Boyce v. Smith, 16 Mo. 317; Virginia v. Rives, 10 Otto 359. II. The court of appeals was wrong in including in its judgment and peremptory writ a direction to permit either party to file a motion for a new trial, or in arrest of judgment in the original cause, within four days after obedience to the peremptory writ, because (1) Under the statutes of Missouri a motion for a new trial, or in arrest of judgment, must be filed at the term of the court at which the case is tried and not after. (2) The term of court at which the case was tried had expired at the time said direction was made, and said writ ordered to be issued. (3) The court of appeals had no power to enlarge the alternative writ of mandamus or to change its character. (4) It can confer no power on the circuit court to entertain motions after verdict. (5) Neither the order of mandamus nor the writ can be accompanied with extraneous directions, touching other questions that may arise in the original case between its parties, affording affirmative relief, especially when not applied for by the parties.

HENRY, C. J.

Charles O. Patier and William Wolf sued the relator, Brainerd, in the circuit court of St. Louis, of which Adams was judge, on two promissory notes for five hundred dollars each, of which, in his answer, defendant admitted the execution, but pleaded that they were given solely for the accommodation of plaintiffs, and also pleaded two counter-claims. Plaintiffs filed their reply denying the allegations of the answer, and, on a trial upon the issues, the jury returned a verdict for defendant on both counts of plaintiffs' petition, and for the defendant on the first counter-claim, and for plaintiffs on the second, and thereupon, the court, of its own motion, set aside the verdict and continued the cause. Within four days after the verdict was rendered, the defendant filed his motion in said court for a judgment on the verdict, which the court overruled. Thereupon defendant instituted this proceeding in the St. Louis court of appeals, seeking by mandamus to compel the said judge to render a judgment on the verdict, and the result was an order for a peremptory writ, commanding said circuit judge to enter a judgment in said cause, and further, to permit either party to said cause of Patier v. Brainerd, to file a motion for a new trial, or in arrest of judgment therein, within four days after the entry of judgment, as directed. The circuit judge appeals from so much of the judgment of the court of appeals as commands the entry of the judgment, and relator appeals from that portion of the judgment allowing the other party to file his motion for a new trial, or in arrest, within four days after the entry of judgment ordered.

The only question which we deem it necessary to consider is, whether the court had authority, of its own motion, to set aside the verdict of the jury? Numerous authorities are cited from our own reports in support of the position, that the court may, of its own motion, set aside a verdict. The authority of the court, on motion of the party complaining to set aside the verdict, at common law, is unquestionable. In Williams v. Circuit Court, 5 Mo. 248, Judge Edwards held that the circuit court could, and Judges Tompkins and McGirk that it could not set aside the verdict of its own motion. In Richmond v. Wardlaw et al., 36 Mo. 313, the following language of Judge Edwards in Williams v. Circuit Court, supra, was approvingly quoted: “The sum of the whole matter, under our laws, then, seems to be this: a party sleeps on his rights until the time allowed him by law to make his motion for a new trial expires; he can no longer claim to make his motion as a matter of right, but he may afterwards suggest to the court, that substantial justice has not been done him, and the court may look into the matter or not.” This, I think, is a recognition of the right of the court, of its own motion, to set aside the verdict, for if, after the time prescribed, within which a party may file his motion, has elapsed, the court may, on the suggestion of the party, set aside the verdict, why not of his own motion? And is it not in effect of his own motion, if in such case, he sets it aside? In Simpson v.Blunt, 42 Mo. 544, the cause was tried by the court, without the intervention of a jury, and a verdict was found against plaintiff, but without entering a judgment, the cause was by the court continued to the next term, and again tried by the court, and the plaintiff prevailed, and this court, to which the cause was appealed, held that “the action of the court, at the first trial, was simply an exercise of the power of the court to grant a new trial.” In McCabe v. Lewis, 76 Mo. 301, it was said: “It is an inherent power in every court to correct an error which it may have committed, when no positive rule of law forbids it.”

If the court commits a palpable error, in an instruction to the jury, or witnesses misconduct of members of the jury, which, on motion, would authorize it to set aside the verdict, shall it, on account of the ignorance, or timidity of the aggrieved party which prevents him from moving in the...