Hurley v. Kennally

| Mo. | Feb 15, 1905

VALLIANT, J.

— This is a suit in equity to set aside a deed from plaintiff to defendant to certain land in Jackson county on the ground that the defendant obtained the deed by fraud and undue influence.

The answer put the charges of fraud and undue influence in issue. The cause came on for trial and there was evidence tending to prove the allegations in the petition and evidence on the part of the defendant to the contrary. The court found the issues in favor of the defendant and rendered judgment in his favor. In due time the plaintiff filed a motion for a new trial, based mainly on the ground that the finding of the court was against the weight of the evidence. The motion for a new trial came on to be heard and considered and was by the court sustained and the finding and judgment were set aside. Then the court, without notice and without a trial, proceeded immediately to render judgment for the plaintiff, vacating the deed revesting the title to the land in plaintiff and giving defendant judgment for $600 against plaintiff and a lien on the land therefor. Prom that judgment the defendant appeals.

A motion is filed by the plaintiff' to affirm the judgment because of the failure of appellant to deliver to respondent his abstract and brief within the time required by the rules of court. The date on which the abstract should have been delivered to respondent under the rules was September 18th; it was delivered September 21st.

The affidavits on file show that appellant was moving in the matter- with reasonable diligence and the papers would have been delivered in time but for an accident that occurred in the printing establishment, where the abstract and brief were being printed, whereby the presses broke down and the work was delayéd. Under the circumstances, the appellant was not in fault, and, therefore, the motion to affirm for failure to comply with the rules is overruled.

The evidence on the issues of fact in the case was conflicting and it was the right and duty of the chancellor to set aside his findings and his judgment or decree based thereon, if, on a reconsideration and further reflection, he was satisfied that his first conclusions were wrong.

The trial court has the right to grant a new trial in either a law or equity case if it is satisfied that the verdict or finding is against the weight of the evidence. The court, therefore, did not exceed its jurisdiction in sustaining the motion for a new trial:

But when the motion for a new trial was sustained, the cause was at issue for trial again, the court had no authority to enter a judgment without another trial.

Granting a new trial put the case in condition, so far as that court was concerned, as if there had never been a trial, and no judgment could thereafter be rendered upon the merits until a trial was had.

Upon a proposition so self-evident as this, it is difficult to find authorities. The only cases bearing on the subject that have come under our notice are those in which the proposition is taken tacitly for granted or as unquestioned rather than distinctly decided. [State v. Newkirk, 49 Mo. 472" court="Mo." date_filed="1872-03-15" href="https://app.midpage.ai/document/state-v-newkirk-8003498?utm_source=webapp" opinion_id="8003498">49 Mo. 472; Needles v. Burk, 98 Mo. 474" court="Mo." date_filed="1889-04-15" href="https://app.midpage.ai/document/needles-v-burk-8009608?utm_source=webapp" opinion_id="8009608">98 Mo. 474; Milling Co. v. Boggess, 80 Mo. App. 296" court="Mo. Ct. App." date_filed="1899-05-02" href="https://app.midpage.ai/document/friestatt-milling-co-v-boggess-8262230?utm_source=webapp" opinion_id="8262230">80 Mo. App. 296.]

The court in this case committed error when, after granting a new trial, it proceeded without a new trial to enter final judgment.

The judgment is reversed and the cause remanded with directions to the circuit court to proceed to try the cause de novo.

All concur, except Robinson, J., absent.