Warden v. Southards
| Decision Date | 02 May 1945 |
| Parties | W. A. Warden, Respondent, v. Luther Southards, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Douglas County; Hon. Tom R. Moore Judge.
Reversed and remanded.
Green & Green for appellant.
Where new trial was granted at a subsequent term of court, trial court could not grant new trial upon any ground other than that set up in motion for new trial. Smith v Staley, 156 S.W.2d 766; Thurman v. Wells, 251 S.W. 75; Bank v. Parker Corn Co., 245 S.W. 217; Inzerrello v. R. R., 35 S.W.2d 44; Smith v Public Service Co. (Mo., en banc), 43 S.W.2d 548; Beer v. Martel, 55 S.W.2d 482; Landau v. Mill, 36 S.W.2d 921. Authority on motion for new trial to order remittitur on account of excessive verdict is limited to cases where the jury finds for more than the amount authorized in pleadings, facts and instructions. City of Kennett v. Katz Const. Co., 202 S.W. 558; City of Kennett v. Katz Const. Co., 273 Mo. 279. Wherein the motion for new trial as in this case it is stated "under the law and the evidence and upon the whole case the verdict was for the wrong party, such assignment is insufficient to permit a review of the evidence" to show the verdict was excessive, or inadequate or erroneous in any specific particular. Marsters v. Bray, 85 S.W.2d 479; Bond v. Williams, 214 S.W. 202, 206; Mathews v. Carnes, 9 S.W.2d 628; Campbell v. Campbell, 20 S.W.2d 655; Greer v. Carpenter, 19 S.W.2d 1046; Clay v. Owens, 93 S.W.2d 914-915; State ex rel. Ward v. Trimble, 39 S.W.2d 372-375; Pierson v. Stifer, 52 Mo.App. 273; Smith v. Staley, 156 S.W.2d 766. In jury cases judge has broad powers in granting new trials but discretion must not be exercised arbitrarily or unreasonably. Herbert v. Howley, 32 S.W.2d 1095; McDonald v. Heinemann, 141 S.W.2d 177.
G. W. Rogers and Paul Boone for respondent.
The bondsmen should have been notified or the case dismissed as to them. Robertson v. Glenn, 205 Mo.App. 89; Konta v. Stock Exchange, 150 Mo.App. 617; Pegram v. Lee, 199 S.W. 433; Hoffelmann v. Franke, 96 Mo. 533, 10 S.W. 45. Evidence as to the damage to crops and fruit trees should have been excluded. (1) The testimony shows that the damage, if any, occurred after defendant was permitted to place a gate across the pathway. (2) The only damage which was the natural result of the temporary injunction was the cost of building the gate and securing the dissolution of the temporary injunction. The court should not have given Instruction number 1. (1) It allowed the jury to take into consideration the damage to crops and fruit trees, said damage, if any, taking place after the modification of the temporary writ.
FULBRIGHT
This is an appeal from the order of the Circuit Court of Douglas County granting plaintiff a new trial in an injunction proceeding.
In January, 1941, W. A. Warden filed a petition consisting of two counts in the Circuit Court of Ozark County against Luther Southards. In the first count of the petition plaintiff alleged that he had a private road by perscription across defendant's land; that defendant was obstructing said road and plaintiff prayed for injunctive relief and for $ 100 damages.
In the second count he alleged that he is the owner of certain lands adjoining that of defendant; that there is a road leading from his residence across defendant's lands to Bryant Creek; that he had used said road for more than ten years and had an easement therein; that defendant had obstructed same to the irreparable damage of plaintiff; that by reason thereof he had been forced to abandon said road and damaged in the sum of $ 100. Prayer was for a mandatory injunction and for $ 100 damages.
A change of venue was granted to Douglas County where it was finally tried at the September Term, 1942, resulting in a verdict and judgment for plaintiff on the first count and for defendant on the second count of plaintiff's petition. Motion for a new trial was timely filed and continued to the next regular term of said court, at which time the motion was overruled. Whereupon defendant immediately filed a motion for assessment of damages by reason of dissolution of the injunction on the second count of plaintiff's petition, in which motion he alleged that by reason of said mandatory injunction on the second count he was damaged in the sum of $ 200. The cause was continued from time to time until the September Term, 1943, when it was tried before a jury resulting in a verdict in favor of defendant for damages in the sum of $ 100.
Thereupon plaintiff filed a motion for a new trial and the matter was continued on motion to the January Term, 1944, at which time the Court made an order holding that in his opinion damages were excessive in the sum of $ 65 and if defendant Southards would remit said sum the motion would be overruled; otherwise it would be sustained. Defendant refused to file a remittitur and motion for new trial was sustained. From this judgment defendant appeals.
Defendant's Assignment of Errors are as follows:
The sole question for this court to determine is whether or not the trial court erred in granting plaintiff a new trial. In considering the motion the trial court made and entered of record the following order:
"This being an action of damages on Injunction Bond and the verdict of the jury being for the sum of $ 100. The Court is of the opinion that such damage is excessive in the sum of $ 65 on property damage. Being of the further opinion that as the tract of land was unenclosed on a certain side except by a stream of water and property damage is excessive and which the Court finds
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