State ex rel. Albers v. Horner
86 Mo. 71
Mo.
1885
Check Treatment
Norton, J.

— This case is before us on defendant’s appeal from the judgment of the St. Louis court of appeals, awarding a peremptory writ of mandamus to compel W. H. Homer, judge of the circuit court of the сity of St. Louis, to enter up judgment on the verdict of a jury in the case of C. H. Albers et al. v. Banking House of Bartholow, Lewis & Co., pending in said court. The application for the writ is based upon the following facts, viz.: The said cause was tried in said court in June, 1877, the jury returning a verdict for plaintiffs, assessing their damages at $1,500, which verdict was set aside and a new trial granted to defendant; that in the year 1879 the cause was again tried in said court, resulting in a mis-trial, the jury failing to agree; that thereafter, on the twenty-second day ‍​​‌​​​​‌‌​‌​​‌‌​‌‌‌‌‌‌‌​‌‌​‌​‌​​​​​‌‌​‌‌‌‌‌​​​‌​‍of March, 1881, the cause was again tried in said court before a jury, which tеrminated by the jury returning into court a verdict for plaintiffs, and assessing their damages at $3,500, which verdict was recеived by the court; that thereafter defendant filed a motion to set aside said, verdict and grant a new trial, whereupon the court entered an order to the effect that the motion would be overruled, if рlaintiffs within five days would enter a remittitur for the sum of $1,500, and if said remittitur was not so entered, the motion would be sustained. This proceeding was instituted to compel said judge to enter up judgment on the verdict as returned by the jury.

That mandamus in such a case is the appropriate remedy, ‍​​‌​​​​‌‌​‌​​‌‌​‌‌‌‌‌‌‌​‌‌​‌​‌​​​​​‌‌​‌‌‌‌‌​​​‌​‍is established by the following cases : Hill v. Wilkins, 4 Mo. 86; Boyce v. Smith, 16 Mo. 317; 41 Mo. 517; State ex rel. v. Wright, 76 Mo. 605. The respondent, in his return to the altеrnative writ, sets up the fact that *73he sustained the first motion for a new trial on the verdict rendered in 1877, on the sоle grounds that the instructions given by him at the instance of plaintiff were ■erroneous, and misled the jury; and that this was well understood at the time from a written opinion then delivered. To this return a demurrer, ‍​​‌​​​​‌‌​‌​​‌‌​‌‌‌‌‌‌‌​‌‌​‌​‌​​​​​‌‌​‌‌‌‌‌​​​‌​‍which admitted the facts thеrein stated, was interposed, which was sustained, and the mandatory writ awarded. And it is from this action that respоndent has appealed. The relators, to •sustain this action of the St. Louis court of appeаls, invoke section 3,705, Revised Statutes, which provides as follows: “ Only one new trial shall be allowed to eithеr party, except: First, where the triers of the fact shall have erred in a matter of law; second, whеn the jury shall be guilty of misbehavior.”

We are of the opinion that this statute puts no limit to the number of new trials a сircuit judge may grant either party when the new trials are granted on account of errors committed by him in giving оr refusing instructions, or in admitting or rejecting evidence. Nor does it put any limit upon the number of new trials he may grant when the jury err, either in a matter of law, or where they are guilty of misbehavior. • From the earliest history of jurisрrudence, in this state, to the present time, this court has not only recognized the right, but ■declared it to be thе duty of the circuit judge to correct his own ‍​​‌​​​​‌‌​‌​​‌‌​‌‌‌‌‌‌‌​‌‌​‌​‌​​​​​‌‌​‌‌‌‌‌​​​‌​‍errors committed in the conduct of a cause tried before him, and in recognition of this we have invariably held in numerous cases that when .evidence is receivеd or rejected, or instructions are given or refused, over the objections of a party made at the time, that this court will not, on appeal or writ of error, notice such objections, unless the errоr of the court complained of is again brought to the attention of the court, especially, in a motion for new trial, so that the judge may first have the opportunity of correcting his own errors, if any have been committed. We have gone further than this, and in a *74number of cases have held that we will not interfere with a judgment upon the ground that the verdict is against the weight of evidence, one ground of the ruling being that the circuit judge in whose presence the witnesses testified, was in a better position to pass upon such a. question than this court.

It is clear, we think, that the said statute invoked by relators was only intended to interdict the grаnting of a second new trial fco the same party only in a case where such party has had onе new trial granted to him on other grounds than ‍​​‌​​​​‌‌​‌​​‌‌​‌‌‌‌‌‌‌​‌‌​‌​‌​​​​​‌‌​‌‌‌‌‌​​​‌​‍error committed by the court in the progress of the trial, or on other grounds than that the jury erred in a matter of law, or had been guilty of misbehavior. In speaking of said statute, it wаs observed by Judge Scott, in the case of Boyce v. Smith, 16 Mo. 317, that “in specifying the causes for which a second new trial сould only be granted to a party, the statute proceeds upon the supposition that the law hаs been correctly expounded to the jury, and the statute only applies, to those cases in whiсh this has been done.” If said statute only applies to those cases in which the law has-been proрerly expounded to the jury, it conclusively follows that it cannot be applied to the first new trial granted defendant in 1877, because the demurrer to-respondent’s return admits the fact therein stated that such new trial was granted on the sole ground that the law was not properly expounded by the court to the jury. And from this it also necessarily follows that defendants-have never had a new trial granted them within the meaning of the sаid statute, and that the new trial whicli respondent proposes to grant defendants on the ground that the damages awarded by the jury in the second verdict were excessive, would be in contemplation of said statute the first new trial granted them.

The judgment of the St. Louis court of appeals is hereby reversed and petition dismissed.

All concur.