State ex rel. Spears v. Hughes

• Decision Date: 02 July 1940
• Docket Number: 36982
• Citation: 142 S.W.2d 3,346 Mo. 421
• Parties: State of Missouri at the relation of Virginia Spears, Relator, v. William C. Hughes, William Dee Becker and Edward J. McCullen, as Judges of the St. Louis Court of Appeals
• Court: Missouri Supreme Court

142 S.W.2d 3

346 Mo. 421

State of Missouri at the relation of Virginia Spears, Relator, v. William C. Hughes, William Dee Becker and Edward J. McCullen, as Judges of the St. Louis Court of Appeals

No. 36982

Supreme Court of Missouri

July 2, 1940

Record quashed.

Albert S. Ennis for relator.

Terry Terry & Terry for respondents.

(1) The appellate court may sustain motion for a new trial on any ground contained in said motion and shown by the record, even though trial court sustained motion for a new trial on an improper ground, provided said grounds are pointed out to the appellate court. Thompson v. Street Ry. Co., 140 Mo 144; Haven v. Mo. Ry. Co., 155 Mo. 228; Emmons v. Quade, 176 Mo. 29; Smart v. Kansas City, 208 Mo. 183; Higgins v. Higgins, 147 S.W. 964; Stegner v. M.-K.-T. Railroad Co., 333 Mo. 1193; Hunt v. Iron & Metal Co., 327 Mo. 893; Cole v St. L.-S. F. Ry. Co., 332 Mo. 1011; Sakowski v Baird, 334 Mo. 956; Lowery v. Kansas City, 337 Mo. 51; Reissman v. Wells, 258 S.W. 45. (2) The writ of certiorari heretofore issued in this cause should be quashed.

OPINION

Tipton, J.

Certiorari to the judges of the St. Louis Court of Appeals, bringing up the record in the case of Spears, appellant, v. De Clue, respondent, reported in 133 S.W.2d 1044, wherein that court affirmed the action of the trial court in sustaining defendant's motion for a new trial.

The essential facts as found by respondents are as follows:

"This is an action whereby plaintiff seeks to recover damages from defendant for a breach of promise to marry, aggravated by seduction. The cause was instituted in the circuit court of Jefferson County, Missouri, but went on change of venue to the circuit court of Washington County, Missouri, where a trial resulted in a verdict and judgment for plaintiff in the sum of $ 5,000. Defendant filed motion for new trial setting forth fifteen assignments of error, among which are the following:

"First, the verdict in said cause is against the evidence.

"Third, the verdict in said cause is against the law under the evidence.

"Fourteenth, that defendant, since the trial of said cause, has found new evidence from the Bureau of Vital Statistics of the State of Missouri, said evidence being a birth certificate showing defendant's birth date to be August 22, 1915, which establishes defendant's infancy at the time said alleged contract of marriage was entered into. Said birth certificate is herewith attached and marked exhibit A.

"Fifteenth, that the verdict is against the evidence, the weight of the evidence, the law under the evidence and the instruction given by the court for the following reasons: That defendant was under the age of twenty-one years when and if said contract of marriage was made, and there was no ratification of said contract of marriage shown, and defendant made no ratification of said contract.

"Attached to said motion for new trial was the certified copy of the certificate of birth of defendant, showing that he was born on August 22, 1915.

"On the 27th day of November, 1937, and during the same term of court at which the case was tried the court sustained the motion for new trial, the record of that action being as follows:

"'Now come both parties herein by attorneys and motion for new trial heretofore filed is now taken up and after being seen, heard and fully understood, defendant is granted a new trial by the court on assignment No. Fourteen of his motion for a new trial.'

"Thereupon plaintiff perfected her appeal to this court from the order of the circuit court sustaining defendant's motion for a new trial.

"There is only one assignment of error by appellant, that being that the court erred in granting defendant a new trial on the ground of newly discovered evidence, the contention being that the motion for new trial containing the assignment of newly discovered evidence was not sworn to and there was no affidavit of diligence, and no affidavit that defendant did not know of the evidence at the time of the trial.

"In the view we take of the case it would serve no useful purpose to recite here all of the evidence in the case, sufficient to say that the evidence was ample and sufficient on plaintiff's part to make a submissible case."

Respondents sustained relator's contention that the trial court erred in granting the motion for new trial on Assignment No. Fourteen which was on the ground of newly discovered evidence, but affirmed the action of the trial court for the reason that there were other good and sufficient reasons why a new trial should have been granted.

In ruling the case, respondents said:

"In this case the motion for new trial specified:

"First, the verdict in said cause is against the evidence.

"Third, the verdict in said cause is against the law under the evidence.

"Fifteenth, that the verdict is against the evidence, the weight of the evidence, the law under the evidence, and the instruction given by the Court for the following reasons: That defendant was under the age of twenty-one (21) years when and if said contract of marriage was made, and there was no ratification of said contract of marriage shown, and defendant made no ratification of said contract.

"And inasmuch as the instructions required the jury to find for the defendant, if they believed and found from the evidence that at the time defendant promised to marry plaintiff he was under the age of twenty-one years, and inasmuch as the only substantial evidence was that defendant was a minor, the trial court would have been justified in granting a new trial on either of the above grounds, and it is our duty to uphold the ruling of the trial court if either of said grounds justify so doing.

"The order of the trial court granting a new trial is affirmed and the cause remanded."

In the findings of fact made by respondents, they said "that the evidence was ample and sufficient on plaintiff's part to make a submissible case;" yet in ruling the case they say that "in as much as the only substantial evidence was that defendant was a minor, the trial court would have been justified in granting a new trial on either of the above grounds." (Italics ours.) In view of the findings of fact made by respondents, we presume that the words, "only substantial evidence," mean the weight of the evidence, because one of the above grounds was that the verdict was against the weight of the evidence. That was the position taken by both relator and respondents during the oral arguments of this case. We think the ruling of respondents contravenes ...