Weilandy v. Lemuel

• Decision Date: 31 January 1871
• Citation: 47 Mo. 322
• Parties: JOHN F. WEILANDY et al., Plaintiffs in Error, v. JOHN LEMUEL, Defendant in Error.
• Court: Missouri Supreme Court

47 Mo. 322

JOHN F. WEILANDY et al., Plaintiffs in Error,

v.JOHN LEMUEL, Defendant in Error.

Supreme Court of Missouri.

January Term, 1871.

Error to First District Court.

Geo. T. White and Henry Flanagan, for plaintiffs in error.

E. L. King & Bro., for defendant in error.

WAGNER, Judge, delivered the opinion of the court.

This was an action of ejectment, tried by consent of parties before the court, without the intervention of a jury. No instructions were asked or given. The court, after hearing the evidence, found a verdict for the defendants and rendered judgment thereon. We can not weigh the evidence, and undertake to say whether it justified the finding and judgment of the court or not, and as no question of law is saved, the case can not be reversed. (Easley v. Elliott, 43 Mo. 289; Wilson v. North Missouri R.R. Co., 46 Mo. 36.)

This court will not review the evidence to find whether the Circuit Court has come to the proper conclusion, except in strictly equitable cases. Under the practice act of 1849 the law was different, and required the court to make a finding of facts in the nature of a special verdict, with its conclusions as to the law thereon; and even then it was deemed to be the better course for the court, when trying a cause in the first place, to declare what the law was, and then, in its capacity of a jury, to find the issue of fact accordingly. (Piercefield v. Snyder, 14 Mo. 583.)

But now the court, in trying issues of fact, sits as a jury and gives a general verdict; and the only way in which its errors can be corrected, if it decides the law wrongfully, or makes a misapplication of the law to the facts, is to ask declarations of law or instructions, in order that we may see on what theory the court proceeded. To attempt to review this case would simply be giving our opinion upon the weight of evidence, when no point of law was saved or raised in the trial court. This we can not do.

Judgment affirmed.

The other judges concur.