Tierney v. Spiva

• Decision Date: 31 October 1882
• Citation: 76 Mo. 279
• Parties: TIERNEY, Appellant, v. SPIVA.
• Court: Missouri Supreme Court

76 Mo. 279

TIERNEY, Appellant,

v.SPIVA.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Madison Circuit Court.--HON. J. H. NICHOLSON, Judge.

REVERSED.

Carter & Nalle for appellant.

Emerson, Cahoon, Fox & Douchouquette for respondent.

HOUGH, J.

This was a suit to redeem certain land from a mortgage alleged to have been executed by the ancestor of the plaintiff, under which, as assignee thereof, it was averred that the defendant held possession of said premises. The defendant, in his answer, denied that he held possession of the premises described in the petition as assignee of the mortgage executed by plaintiff's ancestor, and averred that he entered into and held possession of the same as owner thereof under and by virtue of a warranty deed from one Grigsby, and he also denied the title of the plaintiff. The mortgage mentioned was read in evidence and testimony introduced as to plaintiff's title and as to rents and profits, and plaintiff rested. At the close of the plaintiff's testimony, which failed to connect the defendant in any way with the mortgage set out in the petition, the court, at the request of the defendant, gave an instruction in the nature of a demurrer to the evidence, to which action of the court, the plaintiff at the time excepted. Thereupon the plaintiff asked to have the case re-opened, that he might introduce testimony showing that the defendant held possession of the land as assignee of the mortgage set out in the petition, which request was by the court denied, to which ruling of the court the plaintiff excepted, and he now brings the case here by appeal.

In several cases where the introduction of testimony out of its order has been discussed, this court has declared that “the law has intrusted courts with a discretion in allowing the parties to a cause to obviate the effects of inadvertence by the introduction of testimony out of its order. This discretion is to be exercised in furtherance of justice, and in a manner so as not to encourage the tampering with witnesses, to induce them to prop a cause whose weakness has been exposed. Where mere formal proof has been omitted, courts have allowed witnesses to be called, or documents to be produced, at any time before the jury retire, in order to supply it. So material testimony ought not to be rejected because offered after the evidence is closed on both sides, unless it has been kept back by trick, and the opposite party would be deceived or injuriously affected by it.”

In Rucker v. Eddings, 7 Mo. 115, the judgment was reversed because the circuit court refused to hear testimony which the defendant discovered was necessary to maintain his defense, after hearing the testimony of a witness who was re-called, (pending the discussion of instructions before the court,) in order to ascertain what he had testified to on a certain point. In most of the cases, in which this matter has been before this court, it has arisen on complaint made that the circuit court had erred in admitting testimony out of its order, and this court has in such cases uniformly declined to interfere, where no substantial injury had been done. Brown v. Burrus, 8 Mo. 26; State v. Porter, 26 Mo. 209; Dozier v....