Thayer v. Halterman

• Decision Date: 26 October 1928
• Docket Number: No. 4426.,4426.
• Citation: 10 S.W.2d 663
• Parties: THAYER v. HALTERMAN et al.
• Court: Missouri Court of Appeals

10 S.W.2d 663

THAYER v. HALTERMAN et al.

No. 4426.

Springfield Court of Appeals. Missouri.

October 26, 1928.

Appeal from Circuit Court, Lawrence County; Charles L. Henson, Judge.

Action by M. Thayer against Harry Halterman and others. From an order granting defendants' motion for new trial on plaintiff's declining to make a remitter, plaintiff appeals. Affirmed, and cause remanded.

Rex V. McPherson and Parker Potter, both of Mt. Vernon, for appellant.

Robert Stemmons, of Mt. Vernon, and William B. Skinner, of Springfield, for respondents.

BAILEY, J.

This is an appeal from an order sustaining a motion for a new trial. The action was in replevin for certain cordwood, lumber, and other wood in laps and tops of trees severed from the ground. The petition was in the ordinary form of replevin, and the answer was a general denial. On trial to a jury, they rendered a verdict as follows:

"No, the jury, find the issues in favor of plaintiff, that at the time of the filing of this suit that he was the owner of and entitled to the possession of the following described property, to-wit: All of the sawed lumber located at said mill site, being 5072 feet at the value of $101.44 Dollars. The wagon tongues at the value of $4.00 Dollars. All of said slabs sawed into blocks, being 12 wagon loads at the value of $18.00 Dollars. All of said slabs and trimmings not cut into wood blocks, being 15 wagon loads, at the value of $11.25 Dollars. All of said cord wood being 95 cords, at the value of $380.00 Dollars. All of said wood in the tree tops or laps and not cut into cord wood, being 150 cords at the value of $375.00 Dollars.

"And that the defendants wrongfully deprived plaintiff of the possession of the same and wrongfully kept said property from him since the filing of this suit, and direct that said property be returned to plaintiff.

                                  "Tommy Allen, Foreman."
                

A motion for new trial was filed. The following then appears in the abstract of the record:

"The Court intimated that the defendants' Motion for New Trial would be sustained unless the plaintiff remitted $375.00 the last item in the verdict, and the plaintiff declining to make such remitter the Motion for New Trial is sustained."

It is from this order the appeal was taken.

On appeal from an order sustaining a motion for new trial, the appellate court will affirm the judgment, if it can be sustained on any ground shown by the record and proceedings in the case. Hewitt v. Steele, 118 Mo. 463, 24 S. W. 440; Johnson Grain Co. v. Railroad, 177 Mo. App. 194, 164 S. W. 182.

The trial court apparently sustained the motion for new trial solely on the ground that the last item in the verdict of the jury, amounting to $375 for wood in the treetops, and not cut into cordwood, was not subject to replevin. While this court is not limited to that reason for sustaining the motion, if such reason is sufficient, this court is bound thereby.

The evidence shows that, prior to the year 1926, one J. T. Munday owned 360 acres of timber land in Lawrence county, Mo. Munday had sold a part of the timber to one Carter who moved a sawmill onto the land, and cut down a large amount of timber. In the fall of 1925 plaintiff purchased the standing timber remaining, amounting to about 160 acres, and also claims to have acquired the tops and butts of trees left on the ground by Carter. Plaintiff purchased this standing timber from Munday by parol agreement for the sum of $70. Munday testified that he sold plaintiff "what saw timber was left that was fit for saw timber." He further testified he did not remember that anything was said "specially" about the tops. Plaintiff testified he was to have "the saw logs, tops and slabs for seventy dollars" on the north 160 acres of the 360-acre tract. Afterwards plaintiff entered on the land and cut down the saw timber and sawed it into lumber, leaving the "tops, slabs, edgings, trimming, wagon tongues and other cord wood timber lying on the ground." In May, 1926, after the timber on the 160 acres had been cut down by plaintiff and sawed into lumber, Munday sold the south 200 acres of this tract of land to defendants. In September following, Munday also sold and conveyed, by warranty deed, the 160 acres from which plaintiff had cut the timber to defendants. The deed made no mention of plaintiff's rights, and defendants claim they had no notice thereof. Plaintiff offered evidence tending to prove they did have such notice and recognized his rights therein by permitting him...