St. Francis Mill Co. v. Sugg, 142 Mo. 364

St. Francis Mill Co. v. Sugg

142 Mo. 364 | Mo. | 1898

Barclay, P. J.

This is an appeal by defendants in the sameYause described in the report of plaintiffs’ appeal, heard at this term, ante, page 358.

A few facts should be added to those stated in' the opinion on the other appeal.- In the latter part of 1894, the defendants served notice that at the following January term, 1895, of the Dunklin circuit court, they would ask the court to pass upon their pending motion *367for new trial. When plaintiffs appeared at said January term, they filed the motion for an entry nunc pro tunc which formed the gist of the contest upon the plaintiff’s appeal. The learned circuit judge refused to amend the record nunc pro tunc as requested; but he also denied the motion for new trial (to quote the record) “for the reason that the court deems the said motion to haye been abandoned and to be not now pending in said cause.”

It appeared at the hearing of these motions in January, 1895, that one of the defendants, Wylie P. Sugg, was nineteen years old and that his codefendants were then of the following ages respectively: A. O. Sugg, thirty-seven years; Clyde E. Sugg, thirty-four years; Henry A. Sugg, twenty-six years; Lalla Sugg, twenty-four years; Jas. P. Sugg, twenty-three years, and Alfred Sugg, twenty-one years. At the time of the original proceedings in the cause, all the defendants were minors, residing in Tennessee.

It was admitted that the motion for new trial was filed while Judge Owens was judge of the circuit court of Dunklin county. But before the'ruling upon it, forming the subject of this appeal, his term of office had expired and Judge Weak succeeded him as judge of the circuit court of that county, and passed upon the motion as already stated. Defendants, after the customary preliminaries, brought the case to the Supreme Court to review the order denying them a new trial.

1. No special order was necessary to effect a continuance from term to term of the motion for new trial. Givens v. Van Studdiford (1885) 86 Mo. 149.

Plaintiffs, as well as defendants, had the right to call the motion to the attention of the court at any suitable time and to insist upon a ruling thereon. So long as it was undisposed of it must be regarded as *368having been passed from term to term, with the unfinished business.

2. The real moving parties to the motion for new trial were minors, represented by a guardian acl litem. One at least of them was yet a minor when the rulings on the circuit occurred in 1895. So we are not called upon to consider the doctrine of laches in respect of bringing the motion to a hearing.

3. Some of the reasons stated in the motion for new trial referred to the discretionary powers of the court, notably the fifth reason assigned. If on account of a change of judges, a party is deprived of the opportunity to have the judge who tried the cause review the finding therein upon a motion for new trial (invoking the exercise of his discretion), the law of Missouri declares that a new trial should be granted in order to avoid the risk of a miscarriage of justice. The reasons for that ruling have been fully given in former opinions of the Supreme Court and they need not be repeated. Woolfolk v. Tate (1857) 25 Mo. 597; Cocker v. Cocker (1874) 56 Mo. 180.

Eollowing the precedents last cited, we reverse the judgment and remand the cause for further proceedings in accordance with this opinion.

Maoearlane, Robinson and Beace, JJ., concur.