35 Mo. App. 680 | Mo. Ct. App. | 1889
delivered the opinion of the court.
This is a proceeding by mandamus to compel the Honorable Waller, W. Edwards, judge of the circuit court of St. Charles county, to vacate an order granting a
After the decision in the case just cited had been rendered the legislature, by an act approved March 22, 1887, amended section 3705, Revised Statutes, so as to require the judge in granting a new trial to specify of record the grounds on which it is granted. The statute as amended, reads as follows: “ Only one new trial shall be allowed to either party; First, where the triers of the fact have erred in matter of law ; Second, when the jury shall be guilty of misbehavior ; and every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted.” Acts of 1887, p. 230. This statute was in force when the first new trial in the case under consideration was granted, but the order of record allowing such new trial did not specify the ground or grounds on which it was granted.
But on the other theory, that, where the judge has omitted or refused to specify of record the grounds on which he granted the first new trial, he is precluded from showing that those grounds were other than the error of the triers of the fact in matter of law, or the misconduct of the jury, — it still remains that, upon this return, the relator would not be entitled to a peremptory mandamus. For here the return sets up that the second new trial was granted because of the misbehavior of the plaintiff in arguing to the jury contrary to the law of the case, which we must assume to mean the law as laid down by the court in its instructions. The return recites that objection was made to this at the time and exception taken. We take it that, for the court, after objection made, to permit counsel to argue against the law as laid down in the court’s instructions, is error in matter of law, for which, under the decision in State ex rel., etc., v. Horner, supra, any number of new trials may be granted. If this were not so, after setting aside one verdict on other grounds than the error of the triers of the fact in matter of law or the misconduct of the jury, the trial judge would have practically no restraint, except in the power to commit for contempt, upon abuse of the right of argument by counsel.
It is scarcely necessary to say that, on this motion for judgment on the return, we do not take into consideration the ex-parte affidavits of the eight jurors which were filed with the petition, nor do we determine any controverted questions of fact.
The motion for judgment on the return awarding a peremptory writ of mandamtts is overruled.