State ex rel. Joseph Schnaider Brewing Co. v. Edwards

36 Mo. App. 425 | Mo. Ct. App. | 1889

Thompson, J.,

delivered the opinion of the court.

After the filing of our opinion overruling the motion for judgment on the return, the relator filed a reply to the return, and thereafter counsel agreed to submit on affidavits the questions of fact remaining for decision. The affidavit of the respondent shows that he sustained the first motion for new trial solely upon the ground of the admission of improper evidence, to-wit, oral evidence of an affidavit for a change of venue grounded on the prejudice of the inhabitants of St. Louis county. This affidavit is corroborated by the affidavit of a member of the bar who was counsel for the defendant and who argued that motion for new trial in the defendant’s behalf, to the effect that this was one of the grounds assigned and argued by hi-m in support of -the motion; and further that the learned judge announced, at or about the time the motion was sustained, that this was the only ground on which he sustained it. These affidavits are not contradicted, and we must therefore take the facts therein stated to be true. Upon the principles stated in our previous opinion in this case, they are conclusive of the controversy; for, there being no limit to the number of new trials which may be granted for erroneous rulings on questions of law, the granting of the first new trial is not to be counted at all in determining the power of the court to grant the second one. We are therefore relieved from the necessity of deciding the disputed question of fact raised by the affidavits as to-the ground on which the second new trial was granted. The first new trial having been granted for error in law, we can not prohibit the learned judge from granting the-second one, no matter what his reasons may be.

Final judgment will be entered for the defendant.

All the judges concur.