The State ex rel. A. M. Stevens Lumber Company v. Smith

• Decision Date: 02 July 1895
• Citation: 31 S.W. 917,129 Mo. 585
• Parties: The State ex rel. A. M. Stevens Lumber Company v. Smith et al., Judges
• Court: Missouri Supreme Court

31 S.W. 917

129 Mo. 585

The State ex rel. A. M. Stevens Lumber Company v. Smith et al., Judges

Supreme Court of Missouri, Second Division

July 2, 1895

Mandamus.

Peremptory writ denied.

Wash Adams and N. F. Heitman for relator.

(1) The right to a mandamus is based upon the fact that the dissenting judge deemed the majority decision to be contrary to prior decisions of this court. That fact being established, the right to the writ is absolute. (2) It clearly and unmistakably appears from an inspection of the face of the majority and dissenting opinions, that, by his act of dissenting, and by his use of the word "dissent" Judge Gill deemed the majority opinion to be contrary to those previous decisions of this court, which hold: That the court can not withdraw a case from the consideration of the jury, if by giving full faith and credit to the plaintiff's testimony it furnishes any substantial evidence, which fairly tends to support his cause of action and that the jury and not the judges are the sole judges of the credibility of the witnesses, and the weight of the evidence.

Karnes Holmes & Krauthoff for respondents.

The present case is simply this: Two judges decided that a given record disclosed a state of facts which did not support a verdict establishing a fraudulent transaction; one judge thought it did disclose such facts. The difference was not as to a rule of law, but upon the probative force of certain facts. Not a single case, in Missouri or elsewhere, is impinged on. On the contrary, on the most favorable view as to the sanctity of a verdict or as to the absolute power of a jury to find as it pleases, the result would have been precisely the same. Testing the present case by all the views which have been expressed or urged in the adjudged cases bearing upon it, whether by majority or minority opinion, this application must be denied. State ex rel. v. Philips, 96 Mo. 570; State ex rel. v. Smith, 105 Mo. 6; State ex rel. v. Smith, 107 Mo. 527.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

This is an application for a writ of mandamus requiring the judges of the Kansas City court of appeals to certify to this court the record in the case of A. M. Stevens Lumber Company v. Kansas City Planing Mill Company, defendant, Kansas City Lumber Company, garnishee, appellant.

The plaintiff in that case recovered judgment against the defendant in the circuit court of Jackson county, Missouri, for $ 1,783.14 at the April term, 1891, and in due time sued out execution and the Kansas City Lumber Company was summoned as garnishee, and, in answer to interrogatories, denied being indebted to defendant in any way, and an issue was thereupon made up and the cause tried before Judge Slover and resulted in a verdict for plaintiff against garnishee for $ 1,082.85. Upon motion for new trial Judge Slover set aside the verdict because in his opinion it was not supported by the evidence. Thereupon the cause was removed to Judge Scarritt's division of the circuit court and again tried before a jury and resulted in a verdict again for plaintiff for $ 1,433.11. Motion for new trial was made and overruled and appeal taken to the court of appeals.

At the March term, 1894, said appeal was argued by counsel on both sides, and submitted on briefs. On May 14, 1894, an opinion was filed, reversing the judgment of the circuit court. On May 25, 1894, a motion for rehearing was filed by the plaintiffs, and the same was, on June 21, 1894, sustained. On October 2, 1894, at the October term, the cause was again argued and submitted, and on November 29, 1894, an opinion was filed reversing the judgment of the circuit court. The decisive question was, was there sufficient evidence of fraud on the part of the garnishee to have entitled plaintiffs to submit that issue to the jury? The substance of the opinion of the court of appeals is to be found in the following extract therefrom:

"The charge made here, when considered in connection with the evidence, is, that the defendant sold the lumber to the garnishee for the purpose and with the intent to cheat and defraud plaintiff, and that the garnishee participated in such purpose and intent. We shall address ourselves to the question whether the garnishee participated in the fraud. If there is a failure of proof in this respect, the case against the garnishee must fail, since whatever fraud upon plaintiff may have been intended, and actually practiced by the defendant in making the sale of the lumber to the garnishee, if the latter had no part in it, its purchase must be upheld. Alberger v. White, 117 Mo. 347, 23 S.W. 92. * * * We must look, then, for evidence which shows fraud on the part of the garnishee, or a participation in the fraudulent purpose of the defendant. We find none, and are, therefore, of the opinion that the demurrer to plaintiff's evidence should have been sustained."

This is the opinion of the majority of the...