Stewart ex rel. Stewart v. Todd

BARCLAY, J. This is an action on the official bond of a constable. Defendants are the principal and the sureties on the bond. The substance of relator’s charge is that the condition of the constable’s bond has been broken by wrongful acts on his part in obtaining possession of certain animals belonging to the relator and converting them to his own use under pretense of enforcing an execution upon a judgment against relator’s husband. The answer of defendants set up several defenses which it will not be necessary to describe particularly. A reply was filed by the plaintiff to the new matter in one of the answers. The case was tried before Judge Eby and a jury. The result was a verdict in favor of plaintiff with damages assessed at $60. Defendants duly made a motion for a new trial which the trial court sustained on the .following grounds: “1. That the court excluded legal and competent evidence offered by the defendant. [4] “2. That the verdict is against the evidence. “3. That the verdict should have been against the plaintiff instead of against the defendant.” The reasons on which the new trial was granted were some of those assigned in defendant’s motion therefor. Plaintiff appealed from the order for a new trial. I. There is a distinct and decided conflict of evidence upon the issues raised by the pleadings. The ruling of the trial judge in granting'the new trial on the second and third grounds assigned was plainly within his discretionary power to review the findings of fact upon such evidence, as has been held in several opinions of the Supreme Court of Missouri which we shall cite. The third ground on which the learned trial judge based his last ruling amounts to a statement that the verdict was against the preponderance of evidence. An appellate court will not interfere with such a ruling unless there is an abuse of discretion therein. No such abuse appears in this instance. To say that “the verdict should have been against the plaintiff instead of against the defendant” is clearly a declaration of the court’s opinion that the verdict is against the weight of the evidence. Thompson v. Railway Co., 140 Mo. 125. II. When a verdict is found to be “against the evidence” the finding has been held to amount to a ruling that the verdict is against the weight of the evidence, according to several expressions of opinion by the Supreme Court of this State. Bank v. Wood, 124 Mo. 72; Parker v. Cunningham, 130 Mo. 348; Haven v. Railway Co., 155 Mo. 216. That the action of a trial judge in passing upon the weight of evidence after verdict is one of the matters within his judicial discretion, is a proposition too well established to require discussion. Lockwood v. Ins. Co., 47 Mo. 50; Lawson v. Mills, 130 Mo. 170; Bemis Bros. Bag Co. v. Kehoe, 74 Mo. App. 627. The ruling under review, we take it, means that the learned [5] trial judge considered the findings of fact, expressed by the verdict of the jury, to be unwarranted by the evidence as a whole. He accordingly set the verdict aside. There is no showing of any abuse of his discretionary power in so ruling. , The order granting a new trial is affirmed. Bland, P. J., and Goode, J., concur.