Stout v. Calver

• Decision Date: 30 June 1840
• Parties: STOUT v. CALVER.
• Court: Missouri Supreme Court

6 Mo. 254

STOUT

v.CALVER.

Supreme Court of Missouri.

June Term, 1840.

APPEAL FROM THE CIRCUIT COURT OF MARION COUNTY.

U. WRIGHT, for Appellant.

1st. I submit that the 4th ground of the motion presented good cause for a new trial, and that the refusal was an improper exercise of the discretion of the court.

2d. Independent of this ground the verdict was wrong.

3d. The issues are not found by the verdict; the set-off is not noticed, and the error is fatal. See Rogers v. Pratt, decided by this court, from which this cause is not distinguishable, also Leak v. Elliott, and Jones v. Snedecor, Adm'r, 3 Mo. R. 390. It is not like the case of Davidson v. Peck, 4 Mo. R. 438.

T. L. ANDERSON, for Appellee. See Smith v. Morrison, 3 Marsh, R. 85; 2 Tidd, 816; 1 Bibb's R. 671; 1 Sellon's Practice, 488; 1 Bibb's R. 247-251; 2 Burrows' R. 230; 3 Durnford and East, 659; 4 Mo. R. 445.

TOMPKINS, J.

Calver brought his action of assumpsit against Stout in the Circuit Court of Marion county, and judgment being given for him in that court, Stout appeals to this court. The action, as above stated, is assumpsit. The pleas were non-assumpsit and set-off. The finding of the jury is, “we of the jury find for the plaintiff, and assess his damages to the sum of,” &c. Judgment being given for the plaintiff, defendant moved for a new trial, having filed his affidavit of merit, and alleging that he was surprised by the cause coming on sooner than he expected; that he had believed the cause was set for trial on the third day of the term, whereas it was set for trial on the first day of the term. The ground of surprise is something new; it is a universally admitted principle that no person is entitled to a new trial unless he has used due diligence to procure evidence. Apply the same rule to the present case, and we may say the defendant ought to have walked to the clerk's office, and to have seen, on the docket itself, the time when the cause was set for trial. If new trials are to be granted for such reasons as this, trial becomes a farce, and consequently all proceedings to obtain a judgment will be mere nullities.^(a) The second objection taken is that the jury has not found all the issues made. The finding is for the plaintiff generally; according to the practice of the English courts such finding was good. See Sellon's Practice, 480, and 3 Durnford and East, 659, the case is Petrie and another, Ex'rs, v. Hannay. The action was assumpsit, for money paid by testator to the use of the defendant, and for money had and received by the defendant to the use of the plaintiffs as executors. The defendant pleaded the general issue, and the statute of limitations. The court held that the omission to enter up a verdict on the second plea was a mere clerical omission. To the same purpose, see Worford v. Ishel, 1 Bibb R. 247 and 251: at the last page Judge Bibb cites the case of Hawker v. Crafton, 2 Burrow, wherein an action for assault and battery, upon the issues of not guilty, and son assault demesne the jury found the defendant generally guilty “of the trespass within written.” The court, upon solemn argument, held unanimously, that the finding was sufficient, and the judgment was affirmed. But the appellant relies on three cases decided in this court to sustain him in his objection to the sufficiency of the finding in the case under consideration, viz: Jones and Jones v. Snedecor, 3 Mo. R. 390; Rogers v. Pratt, 5 Mo. R. 52, and Leak v. Elliott, which last has been twice brought into this court. See 4th and 5th volumes, and in neither volume do I find anything decided that bears on this case. In the case of Jones and Jones v. Snedecor, the action was by petition and summons, a statutory remedy; the defendant pleaded payment and set-off; the court, acting as a jury, found that the defendants were indebted to the plaintiff in the...