162 Mo. 469 | Mo. | 1901
The allegations of the petition are to
The cause was tried by court and jury. There was evidence to support the allegations of plaintiff’s petition, and evidence on behalf of defendant to the contrary. At the close of the plaintiff’s evidence, and again at the close of all the evidence, defendant asked an instruction to the effect that plaintiff was not entitled to recover, which was refused and defendant excepted.
The court gave instructions concerning which no complaint is made. There was a verdict for the defendant, a motion for a new trial, which the court sustained on the grounds that the verdict was “against the law and evidence, against the weight of the evidence and against the instructions of the court.” Erom the order granting the new trial the defendant appeals.
Appellant presents but one point in its brief, that is, that the instruction in the nature of a demurrer to the evidence should have been given, because there was no evidence to show that the land in question belonged to the plaintiff. There was
Neither the deed, nor record called for in the bill of exceptions, is inserted in the record. These it was the duty of appellant to have embraced in the record it brings to this court
But after going through the.appellant’s bill of exceptions of more than seventy printed pages we are convinced that the attention of the court and counsel was directed alone, throughout the trial, to the question of the alleged injury to the plaintiff’s property, and that it was his property was a fact assumed on both sides. The point now presented is presented for the first time in this court.
The trial judge was of the opinion that the verdict of the jury was against the weight of the evidence and for that reason set it aside and granted a new trial, as it was his duty under those conditions to do, and his judgment is affirmed.