84 Mo. 310 | Mo. | 1884
Charles O. Patier and William Wolf sued the relator, Brainerd, in the circuit court of St. Louis, of which Adams was judge, on two promissory notes for five hundred dollars each, of which, in his answer, defendant admitted the execution, but pleaded that they were given solely for the accommodation of plaintiffs, and also pleaded two counter-claims. Plaintiffs filed their reply denying the allegations of the answer, and, on a trial upon the issues, the jury returned a verdict for defendant on both counts of plaintiffs’ petition, and for the defendant on the first counter-claim, and for plaintiffs on the second, and thereupon, the court, of its own motion, set aside the verdict and continued the cause. Within four days after the verdict was rendered, the defendant filed his motion in said court for a judgment on the verdict, which the court overruled. Thereupon defendant instituted this proceeding in the St. Louis court of appeals, seeking by mandamus to compel the said judge to render a judgment on the verdict, and
The only question which we deem it necessary to consider is, whether the court had authority, of its own motion, to set aside the verdict of the jury % Numerous authorities are cited from our own reports in support of the position, that the court may, of its own motion, set aside a verdict. The authority of the court, on motion of the party complaining to set aside the verdict, at common law, is unquestionable. In Williams v. Circuit Court, 5 Mo. 248, Judge Edwards held that the circuit court could, and Judges Tompkins and McGrirk that it could not set aside the verdict of its own motion. In Richmond v. Wardlaw et al., 36 Mo. 313, the following language of Judge Edwards in Williams v. Circuit Court, supra, was approvingly quoted: “The sum of the whole matter, under our laws, then, seems to be this: a party sleeps on Ms rights until the time allowed him by law to make Ms motion for a new trial expires; he can no longer claim to make Ms motion as a matter of right, but he may after-wards suggest to the court, that substantial justice has not been done him, and the court may look into the matter or not.” This, I think, is a recognition of the right of the court, of its own motion, to set aside the verdict, for if, after the time prescribed, within which a party may file his motion, has elapsed, the court may, on the suggestion of the party, set aside the verdict, why not of his own motion ? And is it not in effect of his own motion, if in such case, he sets it aside ? In Simpson v.
If the court commits a palpable error, in an instruction to the jury, or witnesses misconduct of members of the jury, which, on motion, would authorize it to set aside the verdict, shall it, on account of the ignorance, or timidity of the aggrieved party which prevents him from moving in the matter, render an unjust judgment on the verdict? If the jury find a verdict palpably against the law as declared by the court, is it powerless to maintain its own dignity and self-respect, unless some one who feels aggrieved, shall move in the matter? That this power may be abused by the court, is no argument against its existence. The appellate courts will find a way to correct any abuse of the power by the lower courts. It is conceded by the court of appeals, in the opinion delivered in this cause, that, at common law, this power could be exercised by the courts, independent.of any application by a party for its exercise. Rex v. Atkinson, 5 T. R. 437. And that our statute, prescribing the time within which a party may file a motion to set aside a verdict, does not confer upon the court any power which did not previously exist, or abridge the recognized power of the court, but simply regulated the privilege of the parties to the suit.
It is contended, however, and such is the view taken by the court of appeals, that section 3705, Revised Statutes, is in the way of the exercise of the power by the
For the causes named in section 3705, the court, of its own motion, may set aside the verdict. Its common law power, in that respect, is not abridged by the statute. On other grounds than those specified in that section, the court cannot, of its own motion, set aside the verdict. If once, it could do so twice, or oftener, and the party aggrieved by the verdict in the first instance, could have as
If the defendant in a cause denies any liability to-plaintiff and the jury-finds against him, it is, on the face of the record, in his favor, if the court of its own motion sets aside the verdict. If the plaintiff recovers less than he claims, it is in his favor, bn the face of the record, if the court sets aside the verdict of its own motion. It may, in fact, be otherwise. Hence the impropriety of the court, of its own motion setting aside the verdict unless asked to do so by the party aggrieved, if the cause for setting it aside, be other than those specified in the statute. The statute seems to recognize and maintain the sanctity of the trial by jury, and section 3705 was evidently intended to prevent any interference with the verdict after one new trial granted, on any other grounds than a mistake of law, or such misconduct on the part of the jury, as impeaches the integrity of their verdict. It does not appear in his order setting aside the verdict, upon what grounds Judge Adams made it. It may have been for one of the causes named in the statute, and there is enough in the record, we think, to have justified him in making the order for the first cause specified in section 3705. We must assume that, if there was any ground upon which his action could be maintained, it was based upon that, and not upon another that would not maintain it.