State ex rel. Wright v. Adams

• Decision Date: 31 October 1882
• Parties: THE STATE ex rel. WRIGHT et al. v. ADAMS.
• Court: Missouri Supreme Court

76 Mo. 605

THE STATE ex rel. WRIGHT et al.

v.ADAMS.

Supreme Court of Missouri.

October Term, 1882.

Mandamus.

PEREMPTORY WRIT AWARDED.

M. L. Gray and J. M. Holmes for relators.

1. After breach of condition the mortgagee in a chattel mortgage, or deed of trust, becomes the absolute owner of the property. Robertson v. Campbell, 8 Mo. 365, 615; Williams v. Rorer, 7 Mo. 556; Lacey v. Giboney, 36 Mo. 320; Dean v. Davis, 12 Mo. 112; Pace v. Pierce, 49 Mo. 393; Bowens v. Benson, 57 Mo. 26; McCandless v. Moore, 50 Mo. 511.

2. The lien of defendant did not amount to a title to the property. Burgess v. Kattleman, 41 Mo. 480.

3. It amounted at most to a pledge, and a pledgee has no right to the use of the pledged property, and must account for such use. Schouler on Bailments, pp. 196, 199; Story on Bailments, §§ 89, 90, 329, 332; 2 Parsons on Contracts, 111; Houton v. Holliday, 2 Murphy (N. C.) 111; Gibson v. Martin, 49 Vt. 474; Allen v. Fox, Sedgwick's Lead. Cas. 650.

4. No error of law having been committed by the triers of the fact, and the jury not having been guilty of misbehavior, the court had no authority or jurisdiction to grant a second new trial; and the remedy is by mandamus to compel the court to enter judgment on the verdict. R. S. 1879, § 3705; Hill v. Wilkins, 4 Mo. 86; Pratte v. TheJudge, 12 Mo. 195; Boyce v. Smith 16 Mo. 321; Leahey v. Dugdale, 41 Mo. 517.

Broadhead & Haeussler for respondent.

Suppose the court has misled the jury by giving erroneous instructions, and afterwards is satisfied that it has committed an error, has it no right to correct its own error, and must the court drive the party who has a meritorious cause of action or ground of defense to the tedious and expensive process of a writ of error or appeal to correct the error and obtain justice in the trial court? In granting a new trial in such a case, the court is not invading the province of the jury as triers of the facts, because they have been misled by the court in a matter of law and not of fact, and have thus erred in a matter of law. The cases of Hill v. Deaver, Pratte v. The Judge, and Boyce v. Smith, show that this court will look into the merits of the controversy, whether the case comes before it by mandamus or appeal, and decide the case without reference to the action of the court, and if the verdict is in accordance with the law, will sustain it; if not, will order a new trial. Now we say in this case the court below has done what this court, upon appeal or writ of error, would have required it to do, in case the motion for new trial had been overruled.

The instruction given by Judge Adams was manifestly wrong: (1) Because, while the suit was for the recovery of the value of the use of the furniture, the instruction authorized the jury to take into consideration the depreciation in value caused by the use. (2) The plaintiffs had no cause of action at all. Bircher was not a pledgee of the property in the ordinary legal acceptation of that term as applied to personal property. The property was not delivered to him to hold in pledge. He took possession of the house under the lease. He found the property there. He had a lien upon it for the payment of the rent, and the court held that being in possession, and having a lien, he might continue to hold possession, and further, that this lien existed at the time the mortgage was given, and that plaintiffs had full knowledge of it, and if so, the plaintiffs had no lien, or claim, or qualified ownership even, except subject to this prior lien. How, then, could the plaintiffs have any right to compensation for the use?

Mrs. Wright was not the owner of the property. She was not entitled to the possession of it. She had not leased the property to Bircher. She had not given him the possession of it, and there was no contract, express or implied, by which he could be made liable to her for the use of the property; and there is, therefore, no principle of law by which the defendant could be held liable, nor could equity step in to her relief, because even if the property were worth more than enough to pay Bircher's debt, so as to give her a claim for the surplus, she failed to take any step to enforce her claims by paying off his incumbrance, or demanding that the property should be sold as soon as her debt became due. And her debt was past due at the time Bircher took possession.

NORTON, J.

This is an application for mandamus, in which we are asked to compel Judge Adams, of the circuit court of the city of St. Louis, to enter up judgment on the verdict of a jury in the case of Nannie M. Wright and M. L. Gray, her trustee, against Vogel, administrator of Bircher, deceased. The verdict was for plaintiff in said suit and was set aside by said court and a new trial granted. The plaintiff had obtained on a former trial of said cause a verdict which had also been set aside and a new trial granted.

It is claimed by relators that the court was powerless, under the facts of the case and the statute, to grant a second new trial, and that it ought to have entered up judgment in favor of plaintiffs on the second verdict. This claim is based on section 3705, Revised Statutes, which provides “that only one new trial shall be allowed to either party except: 1st, When the triers of the fact have erred in a matter of law; 2nd, When the jury shall be guilty of misbehavior.” It is not pretended that the jury which tried the case were guilty of any misconduct, but it is insisted that they erred in a matter of law. Whether they did so or not is to be determined by what is meant by “the triers of the fact erring in a matter of law.”

1. SECONDNEW TRIAL.

This is not a question of first impression, since the above section, which has had a place on our statute books since 1835, has been before the court for construction in the cases of Hill v. Deaver, 7 Mo. 57; Pratte v. The Judge, 12 Mo. 194; Boyce v. Smith, 16 Mo. 317; and as will be seen by reference to them it has been held that the triers of the fact err in a matter of law, either when the jury, after being properly instructed by the court, misconceive or entirely disregard the instructions, or when they, when improperly instructed by the court, follow such instructions. It has also been held in these cases, that when the court gives improper instructions, and the verdict of the jury is justified by the facts and the real law governing the case, that a second new trial cannot be awarded. In the above case of Boyce v. Smith, it was observed by Judge Scott in commenting upon said section of the statute, “that the object of the law in restraining courts from granting the same party new trials, is to prevent the substitution of the verdict of the court for the verdict of the jury. When two juries on the same issue find the same verdict the law will not permit the court to interfere with the last finding, as the jurors are the constitutional triers of the facts. So if a court misdirects a jury as to the law, and a second verdict is found consonant to the law and facts of the case, though against the instructions of the court, this court will restrain any interference with such a verdict. In specifying the causes for which a second new trial could only be granted, the statute proceeds upon the supposition that the law has been correctly expounded to the jury, and the statute only applies to those cases in which this has been done.”

It is contended by counsel in the case at bar that the court misdirected the jury in its instructions, and was, therefore, justified in granting a second new trial. Under the ruling in the last case above cited, the misdirection of the court is not sufficient to authorize granting a second new trial, if it appears that the second verdict is in consonance with the facts and real law of the case, but on the contrary, that in such case the court will be restrained from interfering with such verdict. So that it follows in the case before us that even if the court did misdirect the jury as contended for by counsel, yet notwithstanding such misdirection if the second verdict conformed to the facts and real law of the case, it was the duty of the court to enter up judgment on such verdict and refuse a second new trial. We are of the opinion that the verdict in this case is of that character, and in the language of Judge Scott in the case of Pratte v. The Judge, supra, “it is use. less to...