121 Mo. App. 565 | Mo. Ct. App. | 1906
Plaintiff sued in replevin in a justice’s court to recover possession of a milch cow. The case was appealed to the circuit court where it was tried
Section 801, Revised Statutes 1899, requires the trial court to state in the order allowing a new trial the ground or grounds on which it is granted, but it has been held repeatedly that the failure to comply with this provision is no ground for a reversal of the judgment. In such case if the action of the trial court in sustaining the motion can be sustained on any ground set forth therein, the appellate court should not disturb the order. [Roman v. Boston Trading Co., 87 Mo. App. 186; Bank v. Wood, 124 Mo. 72; Hewitt v. Steele, 118 Mo. 463; Smith v. Sedalia, 152 Mo. 283; Haven v. Railway, 155 Mo. 216; Metropolitan Lead, etc., Co. v. Webster, 92 S. W. 79.]
Respondent has filed no brief and as appellant’s brief does not advise us of the ground on which the new trial Avas granted, we have carefully examined the whole record to ascertain if the order may be sustained on any ground assigned in the motion. We do not find that any error of Iuav was committed by the learned trial judge in the trial of the cause and as there was a serious conflict in the evidence relating to material issues of fact which Avas sent to the jury under proper instructions, we assume that the verdict was set aside on the ground that it was against the weight of the evidence. The granting or refusing of a new trial on this ground is a matter peculiarly within the discretion of the judge who presides at the trial and this discretion will not be disturbed unless.it appears to have been arbitrarily or unreasonably exercised. The substantial character of the evidence offered by each of the opposing parties on
The judgment is affirmed.
