25 Mo. 597 | Mo. | 1857
delivered the opinion of the court.
This case was tried in the Marion circuit court, at the July term, 1855, before Judge Wells. The verdict was for the plaintiff, and thereupon the defendant filed his motion for a new trial, on the ground that the verdict was against the weight of evidence, and that the court admitted illegal testimony. The motion was not heard by the judge who tried the cause, but was continued until the next term, and in the mean time Marion county, by an act of the general assembly, was included in another circuit, in which Judge Redd presided. At the February term, 1856, the motion was called and overruled for the reason, as assigned by the court, “ that the cause having been tried before Judge Wells, and not having heard the evidence as delivered by the witnesses on the stand, and not having the opportunity which the jury had of deciding upon the credibility of the witnesses, by the manner in which that evidence was given, the court is unwilling to disturb the verdict on the ground that it is against the weight of evidence.” Without expressing any opinion whatever on the evidence or the merits of the motion, we think that, under the circumstances, the court ought to have sustained the motion and ordered a new trial. A party to a suit has the same right to have his motion for a new trial heard and duly considered as he has to institute or defend an action.
With the concurrence of the other judges, the judgment is reversed and the cause remanded.
