52 Mo. App. 342 | Mo. Ct. App. | 1893
— This was an action on a promissory note. Defendant, L. M. Davis, by his separate answer, pleaded payment, and the other defendant, E. J. Davis, for his defense pleaded infancy. There was a trial by jury resulting in a verdict for plaintiff.
The defendants filed a motion for a new trial upon the grounds: First, newly discovered evidence; second, verdict was against the evidence; third, verdict was against the instructions. Upon this motion the court made the following order: “Now come the parties by their attorneys, and defendants’ motion for a new trial of this cause being taken up and fully considered is by the court sustained, because there was error in the instructions given to the jury.” It thus appears that the ground upon which the court granted the new trial is not one of those mentioned in the defendants’ motion. It is from the action of the court in granting the new trial the plaintiff has appealed. Session Acts, 1891, p. 70.
It appears from the record in the cause that, between the institution of the suit and the trial, the said act of 1891 took effect and became operative. It is contended by the defendants that the appeal was not authorized in this case by the said act of 1891, and that in order to make the act applicable a retro
In Hoffman v. Quincy, 4 Wall. 535, it was declared by the supreme court of the United States that it is competent for the states to change the form of the remedy or to modify it otherwise as they may deem fit, provided no substantial right secured by the contract is thereby impaired. That provision of the bill of rights which prohibits the legislature from passing any law retrospective in its operation extends only to prohibiting legislation of a retrospective character which disturbs rights of a private nature. State v. Kemper, 9 Mo. App. 532; Ins. Co. v. Hill, 86 Mo. 466; State v. County Court, 34 Mo. 546; State v. Hager, 91 Mo. 452; Porter v. Mariner, 50 Mo. 364; Willshear v. Kelly, 69 Mo. 363; Ins. Co. v. Flynn, 38 Mo. 483; Bolton v. Lansdown, 21 Mo. 399; Tennessee v. Sneed, 96 Otto (U. S.) 69. It is too plain for argument that no vested
The trial court having granted the new trial on a ground of its own not suggested by the defendants’ motion, by necessary and inevitable implication, did not grant it on any of the grounds of such motion. The statute imperatively requires a court in its order granting a new trial to specify the grounds therefor. Revised Statutes, sec. 2241.
There seems to be no limit on the power of the court to grant new trials on either of the grounds specified in section 2241, Revised Statutes, but, for the other grounds specified in section 2240, only one new trial can be granted. The record thus required to be made was no doubt intended to enable the court to keep itself advised of the grounds upon which any former new trial may have been granted.
The court had the inherent power, independent of the ground of defendants’ motion, to grant a new trial for the cause specified in its order. State ex rel. v. Adams, 84 Mo. 311; McCabe v. Lewis, 76 Mo. 301; Williams v. Circuit Court, 5 Mo. 248; Richmond v. Wardlaw, 36 Mo. 313; Simpson v. Blount, 42 Mo. 542.
The question is whether or not on the appeal taken in pursuance of the act of 1891 we are restricted to an examination of the grounds upon which the court as shown by its order granted the new trial, or can we also look at the grounds of the motion of the defendant as well to the end that we may see whether the action of the court can be sustained on any one or all of these grounds. The order of the court may be proper, but the ground upon which ’ it was made be improper. Our code of practice places parties to a suit in an appellate court on an equal footing. If we are restricted in our examination of the errors committed
As to the second ground it may be remarked that appellate courts may vacate judgments as opposed to the weight of the evidence in those cases where the verdict of a jury or the court sitting as a jury is so strongly opposed to all reasonable probabilities as to be the manifest result of passion or prejudice. Adler v. Wagner, 47 Mo. App. 25. A critical examination of the evidence does not convince us that the defendants’ case is within this rule, so that the second ground of defendants’ motion cannot be sustained.
And as to the third ground of the motion it is manifestly .without the slightest merit.
This brings us to the consideration of the ground assigned in the order of the court for a new trial, which is that the court erred in the instructions. It is contended by defendants that the plaintiff’s first instruction, which informed the jury that if they found that there was. a balance due plaintiff on the note sued upon that they should find against the defendant, E. J. Davis, unless they believed from the evidence that he was under the age of twenty-one years at the time of the execution of the note, and in determining the question of his age that they might consider his testimony in relation thereto, his interest in the result of the suit and his motive, if any, for his testimony given in the case, is erroneous. In view of the statute, section 8918, and the rulings of the supreme court (State v. Musick, 101 Mo. 260; State v. Strattman, 100 Mo. 540; State v. Brooks, 92 Mo. 542; State v. Jones, 78 Mo. 278; State v. Owens, 78 Mo. 367; State v. Harrod, 102 Mo. 590), we think that the court did not err in the' giving of this insruction.
In respect to the plaintiff’s third instruction (no objection being urged against his second), which told
We have been unable to discover any fatal conflict or inharmony in the instructions which justified the court in its action in granting a new trial. It results that the order of the court will be reversed with directions to reinstate the verdict and enter judgment thereon accordingly.