100 Mo. App. 311 | Mo. Ct. App. | 1903
An attachment suit was brought in the circuit court of the city of St. Louis by appellants against respondent, assigning among other statutory grounds for attachment that the defendant had fraudulently concealed, removed or disposed of his property or effects, so as to hinder or delay his creditors. A trial was had on defendant’s plea in abatement, and the jury returned a verdict in his favor which, upon plaintiffs’
At the second trial a great volume of testimony was introduced, tending to support the various grounds for attachment and contained in the lengthy record filed in this court which, however, has not been abstracted, and appellants are content h> narrow and confine their reliance for reversal in this court to the presentation and consideration of the single proposition that the evidence offered by plaintiffs was not only uncontradicted upon the particular ground of attachment, that the defendant had fraudulently concealed, removed or disposed of his property or effects so as to hinder and delay his creditors, but that it also was fully established by the testimony of the defendant himself, and that, therefore, as a matter of law plaintiffs were entitled upon this ground to a verdict, and that the verdict of the jury ignoring the undisputed evidence upon this ground had nothing to support it and plaintiffs were entitled to a new trial, regardless of the number of trials preceding.
There was evidence proving that defendant had given a chattel mortgage upon his property to Aimee D. Emory to secure notes for the total sum of one thousand dollars, which defendant testified he repaid in installments, making the final payment at a late hour o.n January 9, 1896. The mortgage remained after such payment not released and defendant explains that this was due to the fact that the mortgage had been stolen from his desk in his absence by the mortgagee after its payment and by her placed on record. But however this may be, by letter of defendant to plaintiffs, dated the day on which he asserted he made the final payment of the mortgage, and by his succeeding letters, defendant represented to plaintiffs that this chattel mortgage was an existing obligation.
Section 801 of the present statutes permits a second new trial only where the jury erred in -a matter of law or were guilty of misbehavior, and unless such error in matter of law or misconduct on part of the jury appears, neither party is entitled to more than one new trial. Appellant has not indicated any -error by the jury in any matter of law -and makes no charge of misconduct, and if this court was at liberty to weigh the testimony, the plain letter of the statute would forbid disturbing the verdict as against the preponderance of the evidence.
The judgment is affirmed.