Hess v. Miles

| Mo. | Oct 15, 1879

Henry, J.

Treating this as a suit to compel the settlement of accounts between the parties, as it seems to have been regarded by the circuit court and the attorneys for the respective parties at the trial, we see no error in the rulings of the court to warrant a reversal of the judgment. Some irregularities occurred, but they did not prejudice the plaintiff’s case. After hearing all the evidence the court called a jury, announcing that the balance of the case would be submitted to them. No specific issue was submitted, either verbally or in writing. The plaintiff proposed to introduce the same evidence which the court had already heard, but it was excluded, and the jury instructed by the court to find for the defendant, which they did, and judgment was accordingly rendered in his favor. If specific issues had been submitted to the jury, and they had rendered a verdict on them, the court might have disregarded the verdict in rendering a judgment, and certainly on a general, verbal submission, it is equally in the discretion of the court to disregard the verdict and render its judgment upon its own conclusion from the evidence. It is not a.case in which either party is entitled to a jury, and why one was called is not apparent. The court had heard all the evidence in the ease, and might just as well have, decided it then without calling a jury; and if we are allowed, a conjecture, it is, that after the jury was called and the court ascertained that there was no other evidence to be'introduced than had already been heard, he concluded very properly, that the trial by the jury would be an idle ceremony, and, therefore, instructed them to find a verdict in accordance with his own views.

The plaintiff: also complains:of the action of the court in striking out parts of his replication. The |>arts stricken out contained new matter not embraced in the petition, together with allegations substantially found in that portion of the replication which was permitted to stand. The plaintiff’s petition did not, either .generally or specially ? aver a compliance with the conditions of the bond. The defendant’s answer alleged breaches of the bond, and the court overruled the plaintiff’s motion to strike out the replication as to so much as was responsive to the alleged breaches. On the issues thus formed the. trial was had. The evidence was contradictory, and- the finding of the court is not so manifestly against the weight of the evidence as to justify a reversal of the judgment, which is, therefore, affirmed,

all concurring.