Jones v. Marble Head Lime Co.

ELLISON, J. Plaintiff brought this action for damages resulting to her by reason of the death of her husband caused, as she alleges, by the negligence of the defendant. At the conclusion of the plaintiff’s evidence' the trial court announced that it would sustain a demurrer thereto, -whereupon plaintiff took a nonsuit. A motion to set aside the nonsuit and grant a new trial was filed by plaintiff and the cause went over to the October term, when the motion was sustained. The record proper shows that the ending of the trial and judgment of nonsuit against the plaintiff was entered on April 25, 1906, and that the motion for new trial was not filed until May 1, 1906. It is thus seen that more than four days intervened, excluding Sunday, the 29th, between the nonsuit and the motion to set it aside. Not being filed within four days, it should not [348] have been considered. [Long v. Hawkins, 178 Mo. 103; St. Joseph v. Robinson, 125 Mo. 1; Scullin v. Railway, 192 Mo. 1.] It is truly said by plaintiff that though the motion was filed put of time, yet the trial court may of its own motion, for good cause, grant a new trial without regard to a motion therefor. But the trial court can only do so at the same term the judgment is rendered. If at a subsequent term it mnst be on the motion which has been continued over. To meet this, plaintiff insists that a new trial was granted at the April term. But the record, which we are compelled to accept as absolute verity, shows differently. It shows that the motion was sustained at the following October term. The record does not disclose any action taken towards granting a new trial except on the motion and that was unauthorized as it was not in time. Plaintiff further insists that the bill of exceptions shows the motion was filed within four days. The bill does recite that the judgment was rendered on April 25,1906, and that “afterwards during said regular term of court and within four days after the rendition of the judgment aforesaid, to-wit: on the first day of May, •1906, the plaintiff filed her motion to set aside the non-suit herein.” If the judgment was rendered on the 25th of April and the motion was filed May 1st, it is apparent it was not within four days. And if we allow the statement of its being “within four days” to control those dates, it still would not aid the plaintiff, since the place for statement of the filing of a motion for new trial is in the record proper, and where the recitation in such record is contradicted by that in the bill of exceptions, the latter must give way. Plaintiff reiterates in brief that the motion for new trial was in fact granted at the April term, and that the court omitted to make note or entry thereof. We can [349] only repeat that we must accept the plain entries of record as governing the case. It follows from what we have said that the new trial was not authorized and the judgment will he reversed and cause remanded that judgment may be entered on the nonsuit. All concur.