*1 сourse, repetition, unnecessary where it does involve should always be commended condemned. and not
It follows that rendered should the circuit-court affirmed; Commissioner so recommends. BENNiCK, adopt- C., PER forеgoing CURIAM: The opinion opinion ed of the court. The as the circuit er, J., eft is, accordingly, affirmed. Host McCul- P. Becker len, JJ., concur. Corpora Hardware Company, ex rel. Witte State Missouri Judge v. Hon. Robert McElhinnеy, tion, Relator, County Division Four of the Circuit Court Number Respondent. S. W. 36. Missouri, Louis, of St. Opinion January Appeals. St. 1937. Louis Court of Jones, Hooker, & Gladney Hooker, Jr., Jones Lon for relator. *2 Philip Foley respondent. A. John J. for and McAtee BENNICK, original C. This is an proceeding in mandamus relator, wherein plaintiff an Company, Witte Hardware action pending respondent, Judge before Hon. Robeejt MoElhiNNEy, of No. 4 Division County, the Circuit seeks Court St. Louis to have ordered and directed final this court to- enter in relator’s favor in conformity said action in with the and directions of which, terms instruction at the trial gave of the the court at evidence, the close of all the but which the refused follow.
The action is promissory one principal note for the sum August 5, $400, 1935, September 5, executed and clue petition prayer in such action being for a plain- principal note, tiff amount interest from the due cent, per рer thereof date at the rate six annum, and for ten cent, attorneys’ per provided fees as the terms of the note. In course cause came on for trial, due and at the close of plaintiff requеsted, ease gave the'defendant’s and read following peremptory instruction: the defendant’s case “At close of court instructs defend- and against they find favor must 1935.” September $440.00 and interest since ant in the amount as court declared this will observed be from defend- entitled to recover law that was a matter of at- principal both the note according to tenor of ant compute the amount torneys’ left fees, accruing after the due date. from and interest retired, giving Following of such in- court into their verdict returned after a consideration required bring in the verdict of their refusal to formed excep- objection аnd Thereupon, over the of them the instuction. caused ease, mistrial court declared a tion of made, the rec- following entry appears on directed of the court: ords ease the of defеndant’s
“Jury trial resumed and at the close *3 jury retires gives directing plaintiff; for verdict court jury the dis- deliberation, being that upon for the court advised is & to follow mistrial agrees declines same a with the instructions contd; filed.” and declared cause instructions motion Thereafter, term, its during plaintiff but the same in- giving which, reciting in of of after the fact the the jury the struction, same, the refusal of to the and sub- the follow up judg- sequent ordering mistrial, of it asked the court to enter the agаinst defendant, in of favor, $470.80 ment its and the in sum the day In- as of the on which the trial of the case was concluded. figures cidentally, represents of $470.80 of the verdict the amount the which the bring in, had been directed to but interest the computed and added sum principal due. court, whereupon ap-
Plaintiff’s motion was overruled the it plied to this court for the issuance of our of man- alternative writ require respondent up damus to and to enter compel for against defendant, prayed and as theretofore in its motion. Upon filing petition setting out the the facts and the circumstances proceedings stated, attending the below heretofore our as alternative writ was issue but with issuance ordered' to the thereof waived petition standing respondent; and to relator’s and for the writ quash, upon filed motion to based has his the ground that petition in the are appearing insufficient the facts to entitle relator prayed for therein. to relief the (cid:127) the refuses follow a A situation where peremptory direc- very in nature judge things is the tion of a most unusual occasionally happens, invariably yet one, leaving and both proper toas course to perplexed pursued. and counsel function, its true in the exercise determines the con in free, fact аccording issues of disputed or to our tested local judicial practice, being only- from persuasion interference, or bound discharging in duty its follow the law of case as declared jury by judge special in the exercise his own function. judge in consequently component parts Both and are of that tangible thing neither, according to entity court, or called and may trespass upon field special practiсe, our local invade or province of the other. judge only when the undertakes to take a from the is case jury by insufficiency of have reason of the evidence either to a a for made submissible case or else to have shown plaintiff’s valid in limited defense cause action that charac- may ter of cases a where verdict be directed for the respective judge functions of both not under- are sometimes appreciated. stood or judge party’s request a
"When the sustains either thereby he favor, it is true party’s such while .in sufficiency upon passes question evidence, does he weigh solely evidence, matter of law instead rules as a legitimately permissible that no is other verdict under the evidence except words, adduced the verdict directs. In other he the direction judge return a certain verdiсt not a decision upon disputed fact or issues such issues contested con- were disputed tested or except jury- he could not determine the same ease, simply his purely waived but instead decision is rendered question law, clearly indisputably such falls special within province judge. exclusive judge accepted' directing But while province acts within his verdict, the jury departs in such an instance from its usual func- *4 tion, returning since in response a verdict in to such a the direction jury any not discretion, only does exercise measure but acts form- ally, perfunctorily, ministerially as the instrument which prepares orderly the record will support only which the judgment that lawfully can in be rendered the ease. Under ouch circumstances, though the act of returning a directed pur- verdict ports to be legal that of the jury, it inis effect the act of the court itsеlf, and' jury function of in returning the a directed verdict as much is ministerial as is the act of clerk of the court in sub- sequently entering judgment up the based thereon. follow, therefore, must judge that with passing upon a question of direсting verdict, law in a jury and with the to bound
follow the law as declared to them the judge, refractory jury, judge’s refusing obey directions, is permitted not to be judge power defeat the of a exercise and function which he possesses and he alone assuming arrog’ating and' to itself the which -it power possess does not and could not of reviewing and over-
864 soTo case. of the judge on the law ruling of the tbe decision and function authority with an to invest permit would be to make judge, solely in the innate and inherent which is supreme. not the law jury and gave respondent instance, in when So this plaintiff’s in favor the return of a verdict for the direction in and' refus- direction, his follow no but to with recourse
was left might have court, contempt ing in direct to do so it was to take such summarily had elected respondent dealt with been action. compelled the might though unquestiоnably have respondent But contempt, by holding in it otherwise jury’s his direction obedience to adhering to but, course, that restricted to was not all events he he judgment, and' to a verdict was entitled his belief that duty bound, seе that such only empowered, not but indeed was regardless of recalcitrant attitude obtained result was respondent plain long mean that ruled jury. By this so we judgment upon record, plain was a verdict and tiff entitled tо of which not to de possessed right of a valuable it was tiff was any arbitrary jury; prived by and unlawful action of and under exigencies situation, it meet circumstances, such duty dignity power preserve both its own court, was the disсharge plaintiff’s right, valuable and cause and to secure formality plaintiff’s up to be entered favor without the Company Fire of a directed verdict. Insurance [Connecticut 350; Hartford, Coppedge, Conn. 150 Oklа. 1 Pac. Ribas v. 13; 9 Estate, 179 Valdes, v. Porto Rico Fed. In re Sharon’s Cal. 533; 283; Reay Reay, App. 264, Pac. v. Cal. Pac. Ry. (C. Chicago, A.), M. & St. P. 74 Fed. Cahill v. Co. C. 285.] suggested respondent when with re- But is was faced direction, his was dis- fusal to follow he left declaring cretion as to whether mere of a mistrial did not suffice. fallacy is plaintiff’s that it takes this no account valuable right respondent deprived long which to be was not so his that plaintiff, adhered to view as a law, matter of was entitled to a verdict and on the record. Concededly might changed propriety have his mind about the might have withdrawn the same from the change mind, and his in question he did still given, and the mistrial was declared, in thе files as not because re- *5 changed propriety his mind about the spondent instruction, of jury had refused simply because the follow his direction. the full proper circumstances Under such exercise respоnd- required bring jurisdiction that he the ease ent’s to a conclusion final to be entered from which causing might defendant
865 aggrieved, presented with motion appeal unless, when defendant’s trial, respondent might inter new conclude the defense actually might posed been in which had one for the event he grant might ap defendant a new from which order trial Hartford, Company Conn. peal. Fire Insurance [Connecticut Coppedge, supra.] v. peremptory compute instruction had left interest, but, itself considered, the nature of the ease computation.
is authorized arithmetical make such mere [Home to. (Mo. Judgment 95 W. Sup.), (2d) Trust Co. v. S. Jоsephson 1148.] should therefore entered verdict for a directed judgment marking the date under the conclusion of the trial facts of this from within which date the which defend time may Meffert, begin ant new shall move trial [Stripe run. v. 366, 762; 287 Mo. Young S. W. Sangster, v. Mo.
S. W. 92.] It follows that our alternative writ of mandamus heretofore issued should be made toas the directions contained in this opinion. The Commissioner so recommends. PEE foregoing opinion BeNNICK, CUEIAM: The C., adopted opinion of the court. The alternative writ of here- madamus is, accordingly, tofore issued made in accordance with Hostetter, recommendations the Commissioner. J., P. Becker McGullen, JJ., concur. Appellant. C.
J. Steele, Respondent, Thomas, 101 S. v. Robert (2d) 499. Appeals. Opinion February Louis
St. Court 1937.