54 Mo. 177 | Mo. | 1873
delivered the opinion of the court.
This action was brought by the respondent against the appellant before a justice of the peace on the following account:
“ St. Louis, Kansas City and Northern Railway Company, in account with Dr. P. H. Tucker. For surgical and medical treatment of Jerome Dollihan, at the hotel in High Hill, Montgomery county, Missouri, as wounded on the sixth day of March, 1872, the cars running over and fracturing his leg, so that amputation was necessary.
March 6th, to March-, 1872,
To surgical and medical treatment of Jerome Dollihan, $75.00.”
A trial was had before the justice, where the plaintiff recovered a judgment for the full, amount of his account.
“Now at this day, appears the parties by their respective attorneys, and by consent this cause is continued to the December adjourned term (4th day, No. 162.)”
Afterwards, on the 18th day of December,, at the December adjourned term, and on the 3d day thereof, the case was called for trial, the plaintiff appearing, but the defendant making no appearance. The case was tried by the court, and a judgment rendered against the defendant for seventy-five dollars.
On the next day, the same being the 4th day of the December adjourned term, the defendant appeared and filed its motion for a new trial, and set forth, as the grounds upon which it relied for a new trial, among other things, the following:
Because the verdict and judgment were contrary to the evidence and the law, and because at the regular October term of the court the cause was by the consent- of the parties, and by the order of the court, specially set for the 19th day of December, 1872, and on the 4th day of the said December adjourned term ; whereas, the said cause was called for trial and a verdict and judgment rendered therein on a day prior thereto,-that is to say, on the 18th day of December, 1872, the same being the third day of said adjourned term of said court; which trial was had on said day without the knowledge or consent of the defendant or its attorney or agents, and in their absence ; that defendant had a good defense to the action, and was present on the 4th day of said adjourned term, the .day the cause was set for trial by the agreement of the parties, ready for the trial of said cause.
With this motion defendant filed affidavits in support thereof. Afterwards said motion was heard, and overruled, by the court, and the defendant at the time excepted, and appealed to this court.
This court will not interfere with the discretion of inferior
In the case under consideration it is shown by the affidavits, filed with the motion for a new trial, that at the regular October term of the Montgomery Circuit Court, the case was continued by the consent of both parties, and by the order of the court specially set for hearing on the 19 th day of December, 1872, and that the defendant and its agents and attorneys had received no notice of any change having been made in reference to the time for the hearing of the cause, until the 19th day of December, 1872, when the defendant’s attorney appeared in court for the purpose of trying the cause, when he was informed that the case had been tried in his absence On the day before, and judgment rendered against the defendant. It further appeared, that the plaintiff’s attorney had been notified before the judgment was rendered on the 18th day of December, 1872, by a witness in the case, that the defendant’s attorney understood, and had notified the witness, that the case was set for hearing on the 19th day of December, 1872.
The affidavits further stated, that the defendant had a good defense to the action, and could prove on a new trial of the case, that plaintiff was never employed by the defendant, or any authorized agent of defendant, to render the services sued for, and that neither the defendant or any authorized agent of the defendant had ever promised to pay plaintiff therefor.
The facts stated in these affidavits were uncontradicted, and the minutes of the court show, that the cause had been continued by the consent of the parties to the December ad-. journed term, 4th day, which was the 19th day of December, 1872.
It is difficult to imagine how a stronger case of surprise could be made out than was made in this case. The cause had been continued, by the agreement of the parties, to the 4th day of the December adjourned term, and so entered on
It further appears from the bill of exceptions in the case, that the following was all the evidence given by the plaintiff in the trial of the cause:
■ “ The plaintiff, -to maintain the issues bn his part, offered evidence tending to prove that on or about the 6th day of March, 1872, at High Hill, Montgomery county, Missouri, one Jerome Dollihan, who was a brakeman in the employ of defendant, was injured by the cars of defendant; that Greatt W. Bixler, station-agent of said defendant, at said town of High Hill sent a boy for a physician, and the boy called the plaintiff, who rendered certain services, which were worth the sum of seventy-five dollars; that one Hamilton, who was conductor of the train on which Dollihan was injured, told plaintiff to give Dollihan such attention as he needed, and that he would be paid therefor; that one H. M. Derry, also told the plaintiff to give him necessary attention ; that a few days afterwards J. L. Hinckly told H. M. Derry to see that Dollihan wanted for nothing, and that defendant would see the bills paid.”
One of the grounds stated in the motion for a new trial was, that the verdict and judgment were against the evidence.
If there was legal evidence in the case, which tended to uphold the findings and judgment of the court below, this court would not interfere with the finding of the court as to the facts; but it will appear by an examination of the evidence that the facts which, it is stated in the bill of exceptions, the evidence tended to prove, when all taken to be true,
With the views above taken of this case the judgment must be reversed.
the judgment is reversed and the cause remanded.