Tiede v. Fuhr
| Decision Date | 01 June 1917 |
| Docket Number | No. 19548.,19548. |
| Parties | TIEDE v. FUHR et al. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.
Action by Alice Tiede against O. C. Fuhr and others. Defendants appeal from order setting aside nonsuit and granting a rehearing. Affirmed and remanded.
Watson & Page, of Springfield, and W. P. Sullivan, of Billings, for appellants. Oscar B. Elam, of Springfield, for respondent.
Action for false imprisonment. Originally it was an action for false imprisonment and malicious prosecution. This is the second appearance of the case here. In the former appeal (264 Mo. 622, 175 S. W. 910) we held that there was no evidence upon which to sustain an action for malicious prosecution, and that the trial court was right in sustaining a demurrer to the evidence upon that count of the petition. We further held, however, that there was sufficient evidence to take the case to the jury upon the false imprisonment count of the petition, and said the trial court was in error in not submitting that count to the jury. Upon a remanding of the cause under our ruling, supra, the case was retried nisi upon the false imprisonment count, and at the conclusion of the evidence the trial court again forced plaintiff to a nonsuit, by giving a peremptory instruction for defendants. The former facts of the case are concisely stated by Blair, J., when the case was here before, to which opinion we refer.
A short restatement should be made. The present plaintiff was subpœnaed as a witness to give her deposition before a justice of the peace, and was attached and brought before such justice by the constable. It was shown that no sufficient notice of the taking of the deposition had been given, and the plaintiff was discharged from custody under the attachment, and this suit followed. The defect in the notice for the deposition consisted in the fact that the notice called for the taking of depositions on March 4th (a date then past) instead of April 4th, the date probably intended. Upon the retrial the evidence of two witnesses materially differed from their testimony upon the former trial, but otherwise the testimony is practically the same. But for this changed condition the case would be one of easy disposition. The condition of the present record as compared with the former record can best be considered in connection with the points made. It should be borne in mind that after sustaining a demurrer to the testimony of plaintiff in the instant case, and thereby forcing the involuntary nonsuit, the trial court upon consideration of the motion to set aside the nonsuit sustained such motion, and reinstated the case. The question here is the propriety of this latter action of the court.
I. This appeal is in the nature of an appeal from an order granting a new trial. The court had directed a verdict for defendants upon the evidence offered by the plaintiff, which directed verdict forced on involuntary nonsuit. A motion to grant a rehearing and reinstate the case partakes largely of the character of the usual motion for new trial. Things which are usually considered upon ordinary motions for new trial may be charged in, and considered by, the court, in passing upon a motion of the character found in the instant case. To illustrate: Had the court excluded material evidence which ought to have been admitted, such court could grant the motion upon that ground. So, too, if the court concluded that it had misjudged the weight and force of plaintiffs' evidence, such court could sustain such a motion on that ground. We might go further by way of illustration, but this will suffice for our purpose. That purpose is to show that the motion involved here is so...
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...D. Kirby, Judge. Action by Alice Tiede against O. C. Fuhr and others. From an order as to costs, plaintiff appeals. Affirmed. See, also, 195 S. W. 1008. Oscar B. Elam, of Springfield, for Alfred Page and G. A. Watson, both of Springfield, for respondents. BRADLEY, J. This is an appeal from ......