State v. Ellison

• Decision Date: 24 December 1913
• Citation: 165 S.W. 369,256 Mo. 644
• Parties: STATE ex rel. IBA v. ELLISON et al., Judges.
• Court: Missouri Supreme Court

165 S.W. 369

256 Mo. 644

STATE ex rel. IBA v. ELLISON et al., Judges.

Supreme Court of Missouri.

December 24, 1913.

Rehearing Denied April 2, 1914.

1. STIPULATIONS (§ 14) — CONSTRUCTION — RECORD ON APPEAL.

Where plaintiff agreed that the words used by the trial judge in overruling defendant's motion for a new trial might be supplied in writing by the trial court and made a part of the bill of exceptions, it was a sufficient compliance with the agreement for the trial judge to orally dictate to the court stenographer.

2. NEW TRIAL (§ 157)—GROUNDS—VERDICT CONTRARY TO EVIDENCE.

Defendant after judgment against it filed its motion for a new trial in time, but, after the time for filing such motion had expired, it filed a "suggestion" supplementary to the motion, stating that the witness upon whose testimony plaintiff solely relied had committed perjury. Later this witness was tried in the criminal court for the perjury and acquitted, and subsequently, upon the hearing of the motion, such acquittal was shown by evidence. The court, in giving his reasons for refusing the new trial, said that, when the case was ended, if he had been the jury he would have decided for defendant, but nevertheless, at that time, he did not think the evidence preponderated so greatly in favor of defendants as to justify setting the verdict aside; that subsequently, when the suggestion was filed suggesting perjury, he determined to set the verdict aside, but, when the jury in the criminal court acquitted the witness of the perjury, he was thrown back to his original conclusion, and hence overruled the motion. Held that, though the court had no right to consider the verdict of the criminal jury and let it sway him back, it could not be held on appeal that the court erred in refusing the new trial, since the language of the court showed that, except for the matter contained in the "suggestion," he was of the opinion to let the verdict stand, and such extraneous matter he was not bound to consider, though he might have, since, by the common law, he could grant a new trial upon his own volition; Rev. St. 1909, §§ 1994, 2023, merely limiting such power to grant only one new trial on the weight of the evidence or to the same party on any one issue.

3. APPEAL AND ERROR (§ 1032)—DISCRETION OF COURT—BURDEN OF SHOWING PREJUDICE.

Though, under Rev. St. 1909, § 2023, great latitude is given to the trial court to grant new trials on the weight of the evidence, and his discretion will not be disturbed on appeal, unless it appear from all the evidence that a verdict in favor of the party to whom the new trial was granted would not have been allowed to stand, such statute has no application where the trial judge refuses to grant a new trial; it being incumbent upon the complaining party to prove to the appellate court that error occurred on the trial which was prejudicial.

4. NEW TRIAL (§§ 117, 152)—TIME FOR APPLICATION.

Under the express provisions of Rev. St. 1909, § 2025, neither a motion for a new trial nor an amended or supplemental motion can be filed after four days, nor may a motion timely filed be amended as to a matter of substance after such time has elapsed.

5. CERTIORARI (§ 68)—SCOPE OF REMEDY.

On certiorari the Supreme Court can quash a judgment of the appellate court only where the facts are undisputed and such court refused to follow the last previous ruling of the Supreme Court.

Woodson, P. J., and Bond, J., dissenting.

In Banc. Certiorari by the State, on relation of Mary Iba, against James Ellison and others, Judges of the Kansas City Court of Appeals, to quash a judgment (157 S. W. 675) rendered by them in the case of Mary Iba against the Chicago, Burlington & Quincy Railroad Company and another. Judgment quashed.

This is an original proceeding by certiorari brought in this court against the respondents, as judges of the Kansas City Court of Appeals, to quash a judgment rendered by them in that court in a case wherein Mary Iba was respondent, and the Chicago, Burlington & Quincy Railroad Company and another were appellants.

Respondents, as judges of said Court of Appeals, on the 5th day of May, 1913, rendered an opinion in the case of Iba v. Chicago, Burlington & Quincy Railroad Company et al. (hereinafter, the case will be referred to as the "Iba Case," and the parties therein as the "plaintiff" and the "defendants," respectively), in which the judgment of the trial court was reversed, and the case remanded for a new trial. This opinion has not yet been officially reported, but the same will be found in 157 S. W. 675, where the facts of the case, so far as the same may be pertinent, and so far as the same may not be in our opinion set down, may be read more at length. Suffice it here to say, that plaintiff in the Iba Case, one Mary Iba, on the 14th day of December, 1909, filed in the circuit court of Buchanan county an action for damages against the defendant railroad and another for the negligent killing of said plaintiff's husband, one Frederick B. Iba, which, it was averred in said petition, occurred on the 13th day of October, 1909, on account of the carelessness and negligence of defendant railroad and one Thomas Phelan, who was the conductor of the passenger train on which, or by means of which, the casualties producing the death of decedent occurred. Upon the trial of the Iba Case, the plaintiff therein prevailed, and was by the verdict of a jury awarded the sum of $5,000 as damages. The verdict of the jury in the Iba Case was rendered on the 15th day of February, 1911.

Three days after the rendition by the jury of its verdict in the Iba Case, and on the 18th day of February, 1911, defendants therein filed their motion for a new trial, which motion, since it cuts some considerable figure in this case (omitting caption and other formal parts) we append as follows:

"Come now the defendants in the above-entitled cause, and move the court to set aside the finding, judgment, and verdict herein, and grant the defendants, and each of them, a new trial of said cause, and in support of said motion say:

"(1) The court erred in refusing the defendant railroad company's instruction in the nature of a demurrer asked by said defendant at the close of plaintiff's testimony.

"(2) The court erred in refusing defendant Phelan's instruction in the nature of a demurrer, asked by said defendant at the close of plaintiff's testimony.

"(3) The court erred in refusing the instruction to find for defendant railroad company, asked by said defendant railroad company at the close of all the testimony in the case.

"(4) The court erred in refusing defendant Phelan's instruction to find for said defendant Phelan, asked by said defendant at the close of all the testimony in the case.

"(5) The court erred in giving instructions 1, 2, 3, 4, 5, 6, and 7, as asked by plaintiff, and each of them.

"(6) The court erred in admitting improper and illegal testimony offered on the part of the plaintiff.

"(7) The court erred in excluding proper and legal testimony offered on the part of the defendants, and each of them.

"(8) The court erred in overruling and refusing to sustain defendant railroad company's petition for removal of this cause to the United States Circuit Court for the Western District of Missouri, St. Joseph Division, which was filed on the first day that this cause was returnable to this court.

"(9) The court erred in overruling and refusing to sustain the petition for the removal of this cause to the United States Circuit Court for the Western District of Missouri, St. Joseph Division, filed by the defendant railroad company at the close of all the testimony in the cause.

"(10) The verdict is against the evidence.

"(11) The verdict is against the weight of the evidence.

"(12) The verdict is excessive.

"(13) The verdict is the result of passion, prejudice, and bias on the part of the jury."

Following the filing of this motion, on which no action at the time was taken by the trial court, and 47 days thereafter, to be exact, on the 6th day of April, 1911, defendants in the Iba Case, during the same term of court at which the verdict aforesaid was rendered, appeared and filed therein a paper duly verified by counsel for defendants as being correct, and which was called by defendants "a suggestion to the court." This document is of some importance in this case, and, in order that a full understanding of the facts may be had, we append it in full, caption and verification omitted: "Come now the defendants in the above-entitled cause, and by way of suggestion to the court as to the granting of a new trial in this cause and setting aside the verdict rendered herein, and as supplementary to and in support of their motion therefor, heretofore filed herein, state that on the trial of this cause during the present term of this court plaintiff introduced two witnesses, to wit, Claude Atterbury and Albert Rise, who claimed in their testimony to have been present at the town of Easton, in the county of Buchanan, state of Missouri, on the 13th day of October, 1910, when Frederick Iba, the deceased husband of the plaintiff, was struck and killed by a passenger train of the defendant railroad company, and that plaintiff introduced no other witnesses who knew or claimed to know the facts in relation to the killing of said deceased, or claimed to have been present at the time; that the said Albert Rise on said trial was duly sworn, and testified that he was present at said town of Easton on said day, and was standing on the platform of the depot at said place, and that he saw said deceased board the passenger train of said defendant railroad company, and that he saw the defendant Phelan catch hold of said deceased, and pull and push him, thereby causing the said deceased to strike a truck standing on said depot platform, and fall from said train; that, in truth and fact, the said witness, Albert Rise, was not present at said time and...