Glaves v. Wood

BIGGS, J. This is an action in equity for an accounting. The cause was tried by Hon. Ben. E. Turner, which resulted in the dismissal of the bill. The plaintiff filed a motion for a new trial, which was continued to the next term of court. During the vacation of the court Judge Turner died, and Hon. E. E. McKee was appointed by the governor to fill the vacancy. The motion for new trial was submitted to Judge McKee. On the hearing the defendant submitted for the consideration of the court a transcript of the evidence taken at the trial, which the parties agreed was correct. The [353] court refused to examine or consider the evidence, and peremptorily sustained the motion. Erom the order granting the new trial the defendant has appealed. Under the earlier decisions the action of the circuit court was unquestionably right, Woolfolk v. Tate, 25 Mo. 597; Cocker v. Cocker, 56 Mo. 180, but under a recent statute (R. S. 1889, sec. 2171), as construed by the supreme court in State ex rel. v. Perkins, 139 Mo. loc. cit. 117, it was the duty of Judge McKee to examine the evidence and determine the motion for new trial on its merits. The sec- ' tion referred to was first introduced in the revision of 1889. It provides that in cases like we have here the incoming judge may sign a bill of exceptions. In referring to this new power the supreme court in the Perkins case, said: “We believe the power to sign a bill of exceptions carries with it as a coincident right, the right to pass upon the motions for new trials, without which in the case at bar the power to sign a bill of exceptions would be worthless and wholly ineffectual.” The clear import of this ruling is that the new judge must determine a pending motion for new trial upon its merits, that is upon an examination and consideration of the evidence. Under the authority of this decision we must reverse the judgment and remand the cause with directions to the circuit court to proceed in accordance with this opin- ion. All concur.