57 Mo. App. 584 | Mo. Ct. App. | 1894
— This is an action on two promissory notes. The defense interposed by the answer of the defendant, Jane E. Smith, was that of non est factvrn.
As to when, how and to what extent, a trial judge may interfere in any case with the verdict of the jury, must depend upon the exercise of a sound discretion; and it is only when it clearly appears that this discretion has been abused, will the supervisory courts interfere. Huckshold v. Railroad, 90 Mo. 548; Bank v. Armstrong, 92 Mo. 265. As was said by us in Longdon v. Kelly, 51 Mo. App. 572, speaking through Judge Ellison, “at the threshold of plaintiff’s (defendant’s) case he is met with the strong though not absolutely insuperable barrier of a trial court’s discretion in the matter of granting new trials. The books are well filled with declarations by authors and courts which vigorously maintain that this function belongs naturally to the trial court. In plain cases, free from doubt, the appellate court will revise such discretion in the plain or apparent interest of justice under the forms of the law.”
The burden is cast upon the defendant to show that there has been an abuse of the sound discretion of the trial court. This is by no means an easy task, for in such cases omnia prcesumuntiw rite et solemniter esse acta donee probetur in contrarium. Consequently it devolves upon the defendant to show that there is nothing in the record of the case to justify the order on either the ground it specifies, or any one of the other grounds alleged in the motion for new trial. Lovell v. Davis, 52 Mo. App. 342: Hewett v. Steele, 24 S. W. Rep. 443. Keeping these principles in view we may now turn our attention to the record to see whether the objection that the court abused its discretion in awarding a new trial of the cause, is well founded or not.
It is stated by defendant that the testimony in the case covers two hundred and sixty-nine type written pages and that she has contented herself with presenting the substance thereof in her abstract of less than one hundred pages. Notwithstanding these facts she insists that we examine the record and revise the action of the court of which she complains. How can we say there is nothing in the evidence to sustain the various findings of the court specified in its order, when only a part of the evidence .is before us?
The first specification of the order is, that the attorneys of defendant continually offered and argued irrelevant, immaterial and incompetent evidence as to
"Q. Have you the — .
Mr. Pike. “Your honor knows what they are driving at. It is improper.”
Mr. Boyd. “We want to introduce these papers in evidence. We think we have a right to do it.”
The Court. “I don’t know what paper you have referred to.”
Mr. Boyd. “It is a paper that is called an indictment.”
The Cov/rt. “You can’t do it.”
Mr. Boyd. “We offer to do that and except to the rulings of the court.”
Mr. Ryan. “We offer to prove — ”
The Court. ‘ ‘You needn’t make that offer before the jury. Put your offer in as full as you want in the record.”
Mr. Ryan. "The understanding is that the offer can go into the record covering all that point just as fully as we want it.”
Mr. Thomas. ‘ ‘I would like for it to appear whether you offer anything that pertains to this case; the notes in suit or not.”
Mr. Boyd. “We are offering it on the ground that it pertains to a series of notes and I have a decision in my hand which I think holds that we have a right to do it. I want to show a series of transactions, which make up a system on the part of a certain man in reference to Mrs. Smith’s name.”
The Cov/rt. “The objection is sustained.”
Mr. Ryan. “We want to show this in connection with that. We offer to show that as a renewal note of the note sued upon, there was a forged note of $2,000*592 signed by T. M. Smith, with the name of Jane E. Smith, this defendant, upon that note. We offer to show that that note is a forgery, and a part of this transaction. * We offer to show, further, that that note was sued upon, and that it, said suit, had been dismissed in this court with the knowledge of the plaintiff that it was a forgery.”
The Cowrt. “That has nothing to do with this, case.”
Mr. Ryan. “We except.”
The Court. “The only issue in this case is whether or not she signed this note.”
Mr. Thomas. “You don’t offer to show in this offer that anybody has ever been convicted of forging Mrs. Smith’s name?”
Mr. Ryan. “No, but we do offer to show in this offer that he was indicted by the grand jury.”
The defendant’s counsel pleaded as an excuse for the manner and style of warfare which the foregoing excerpts taken from the abstract indicate was carried on by them before the jury, a like misconduct of the plaintiff’s counsel. Without undertaking to be specific, we may say that it does seem from the light glimpses afforded by the record of their conduct later on during the trial that the allegations of the defendant’s counsel are not entirely groundless.
It is apparent that the verdict might have been affected by the conduct of counsel and the witnesses to which we have referred. The proprieties of the administration of justice do . not countenance such behavior of counsel while conducting the trial of a cause. We think in order to maintain its own dignity and preserve the purity and orderly administration of justice, the court was bound to set aside the verdict; and the fact urged by the defendant that the counsel of the plaintiff were equally reprehensible with her
The bill of exceptions states that the case was argued before the jury and that Mr. James P. Thomas, one of the attorneys for the plaintiff, made the first speech for the plaintiff. Mr. Thomas’ P. Ryan made the first speech for the defendant and Mr. I. R. Williams made the second speech for plaintiff and was followed by Mr. James P. Boyd, for the same defendant, after which Mr. James P. Thomas made the closing speech in the case on behalf of the plaintiff.
Mr. T. P. Ryan, attorney for the defendant, used the following language in the course of his argument for the defense,-to wit: “Gentlemen of the jury: Mr. Thomas says: ‘You have heard a good deal said about other forged notes. There is no evidence that any note was forged, and the only notes that you have anything to do with are the notes sued on, and if these notes were forged I want to ask you why Smith would pay off the genuine and leave the forged notes unpaid P I say to you, gentlemen of the jury, that our position is that none of these notes were genuine.' That they were all forged and that he took up the two thousand dollar note with money which he received on other forged notes, and if, we were permitted to do so, we would be able to show it. If the gentlemen hadn’t objected to it and we were permitted to do so, we would be able to show it.”
To which remarks of Mr. Ryan the plaintiff’s attorneys- objected, which objection was sustained by
Again, during Mr. T. E. Ryan’s argument to the jury on the part of the defendant, he used the following language: “My God! is the property left by O. M. Smith to his widow to be swept, away from her and she to be thrown out on the cold charities of the world by being compelled to pay a series of forged notes, forged by this villain, T. M. Smith?” “If this jury brings in a verdict against her, it will only be the beginning of forged notes she will be compelled to pay.” “We call on this jury and implore you not to permit her to be robbed of the property left by her husband.”
During .the closing arguments by Mr. J. P. Thomas to the jury-he (Thomas) was urging upon the jury the fact that the only issue for them to try was whether or not the notes in controversy were executed by Jane E. Smith. He said: “Gentlemen of the jury, it has never been established by the verdict of any jury that Thomas M. Smith ever forged the name of Jane E. Smith.” “There is no evidence before you (under the rulings of this court) that JaneE. Smith’s name has been forged.” “It is your duty under the instructions and under your oath to disregard any such intimations by the opposing counsel in this case.” Whereupon Thomas E. Ryan, for defendant, arose and interrupted Mr. Thomas, saying: “Didn’t we have the notes here in court and offered to prove that they were forgeries?” “Haven’t we offered to prove that T. M. Smith was a forger, and in jail for forging Mrs. Smith’s’name?” “Didn’t we
In the portions of the argument and remarks of counsel to the jury which have just been quoted, it is seen that statements and allusions to various facts, to prove which there was no evidence adduced, were made, which it seems to us, were calculated to do much harm. The admonition of the court to counsel to keep within the record was not sufficient to repair the damage which probably resulted. When the mind of the jury is being swayed by the use of perverted and conjectured facts and the influence of zealous and impassioned advocacy, the conditions may require the application of a far more radical and drastic remedy than that administered by the court. If the warning of the court is disregarded it may, in its discretion, then suspend the argument and discharge the jury, or omitting to do that, it may later on set aside the verdict on its own motion. In the recent case of Smith v. Telegraph Co., 55 Mo. App, 626, where it appeared that counsel for the plaintiff in his argument before the jury persisted in making a statement of facts, which were not disclosed by any evidence, and in commenting thereon, it was held that such behavior was an abuse of the license of speech by counsel and a sufficient ground for reversing the judgment.
In the management of a cause the largest and most liberal freedom is allowed counsel and the law protects him in it. “The right of discussing the merits of the cause both as to the law and the facts is unabridged, the range of discussion wide. He may be heard in argument upon every question of law. In his addresses to the jury it is his privilege to descant upon the facts proved or admitted in the pleadings; to arraign the conduct of the parties; to impugn, excuse, justify or con
As has already been remarked, a motion for a new trial is addressed to the equitable discretion of the court to prevent palpable wrong, but the court without such motion has the inherent power to grant a new trial on account of the causes specified in the order. If
Ingenious counsel for defendant have, in a very able brief, urged upon our consideration a number of reasons, some of which are quite persuasive, why the verdict of the jury ought to be reinstated, but, after all, they are unable to relieve it of the suspicion, still lingering in our mind, that it may have been affected by the improper conduct of counsel, nor can we say in view of the entire record before us, that the case is sufficiently plain and free from doubt as to ■ warrant our interference with the discretion exercised by the trial court, or that it is required by the interest of justice that we do so.
In this view we feel that it is perhaps our duty to let the order stand to the end that the cause may be tried again, and therefore affirm it.