Byrd v. Vanderburgh

CAULFIELD, J. (after stating the facts). — As the appellant, interpleader, does not claim that there is any error on the face of the record proper, we may only consider what has been finally passed upon by the circuit court on the motion for a new trial. [118] The first ground stated in said motion is, that “the verdict and judgment are for the wrong party.” This, and that embodied in the third ground, viz.: that the verdict and judgment are contrary to the evidence, are merely the statement in another form of the second ground, which is, that “the verdict and the judgment are contrary to the greater weight of the evidence.” [State ex rel. Stewart v. Todd, 92 Mo. App. 1. See, also, Heine v. Morrison, 13 Mo. App. 577; State v. Scott, 214 Mo. 257, 113 S. W. 1069.] That is not a ground on which we may interfere with the judgment of the trial court. The statement in the third ground, that the verdict and judgment are against the law, is not sufficiently specific to compel consideration. [State v. Scott, supra.] The fourth ground relates to-the, action of the trial court in sustaining a demurrer to the evidence of the interpleader (appellant) as to the hoops loaded on the car. This action was taken at the conclusion of the testimony of the interpleader. But the judgment should not be reversed because of such action, for the'reason that it was for the interpleader as to those hoops, and whatever error was involved in sustaining the demurrer was thereby rendered harmless. The fifth ground is, that the court erred in sustaining the motion of plaintiff offered at the conclusion of all the testimony. The record does not disclose that any such motion was sustained or offered. The sixth ground, that the court erred in admitting incompetent and irrelevant testimony offered by defendant over the objection of the interpleader, must be overruled because the record does not disclose that the interpleader saved any exception to any ruling on the admissibility of evidence offered by the plaintiff. The seventh ground is, that the court erred in refusing to admit competent, material and relevant [119] testimony offered by the interpleader. The only evidence offered by the interpleader which appears to have been excluded and exception noted, was the bill of lading for the carload of hoops. As this evidence related only to the hoops in the car, and the judgment of the trial court was in favor of the interpleader as to them, the error in excluding it, if any, must be held to have been harmless. This brings us to the eighth and ninth grounds ■ stated, which are the principal" grounds relied upon by appellant in urging that the judgment be reversed and a new trial granted. The eighth is, that “witnesses for the plaintiff committed either perjury or mistake in testifying that the hoops involved in the suit were not marked by the interpleader prior to the levy of the attachment.” The statute (Sec. 2022, R. S. 1909) provides that the trial court shall grant a new trial if it “is satisfied that perjury or mistake has been committed by a witness, and is also satisfied that an improper verdict or finding was occasioned by any such matters, and that the party has a just cause of action or defense.” “The purpose of this enactment is to clothe the trial judge, who enjoys the advantage of meeting the parties and witnesses face to face, with a wide discretion to be exercised in furtherance of substantial justice. He should be satisfied with the justice of the verdict, otherwise, it is his duty to set it aside. . . . With respect to the ground for a new trial under consideration, the judge is invested by the statute with the functions of a trier of fact and his discretion is limited only by the rule that it must not arbitrarily be exercised but must rest on a reasonable foundation of fact.” [Ridge v. Johnson, 129 Mo. App. 541, 107 S. W. 1103; see, also, Rickroad v. Martin, 43 Mo. App. 597; Sly v. Union Depot R. Co., 134 Mo. 681, 36 S. W. 235.] In the case at bar there was nothing to satisfy the trial court that perjury or mistake had been committed by plaintiff’s [120] witness, except the «testimony of interpleader’s witnesses and the ex parte and, to some extent, contradictory, affidavits which interpleader filed with the motion for a new trial. Its determination of the matter must necessarily have depended upon its view of the mere credibility of the witnesses,, with which it is not onr province to interfere. As to the ninth ground, viz.: “interpleader was surprised by the testimony offered by plaintiff to the effect that the said hoops were not marked when levy was made, as this fact was not denied at the hearing before the justice of the peace,” the following, quoted from the decision of our Supreme Court in Thiele v. Citizens’ Ry. Co., 140 Mo. 319, l. c. 338, 41 S. W. 800, is a sufficient response: “It is a general rule that each party must understand his case and come prepared to meet the case made by his adversary; therefore, a party cannot be surprised that his adversary introduced testimony in support of the issues made by the pleadings, even though such testimony is false. [Hayne’s New trial, par. 79.] The rule is thus forcibly stated by Phillips, P. J., in Bragg v. City of Moberly, 17 Mo. App. 221. ‘If a party be surprised by an unforseen occurrence at the trial, he should make his misfortune known to the court instantly and ask for a reasonable postponement to enable him to produce the countervailing proof.- If he can relieve himself from his embarrassment by any mode, either by a nonsuit or a continuance, or the introduction of other testimony, or otherwise, he must not take the chance óf a verdict, but must at once fortify his position by resorting to all available modes of present relief.’ ” In the case at bar, the only issue was whether the interpleader had taken such actual possession of the hoops as was required by law of a vendor or of- a mortgagee, whose mortgage was not recorded or filed. As to this, the interpleader had the.burden of proof. [121] In an attempt to sustain this "burden, it introduced evidence to the effect that it had marked or branded the hoops as its property prior to the levy of the attachment. The testimony introduced by the plaintiff, which interpleader claims was a surprise, merely contradicted the testimony which the interpleader had previously introduced. It is clear, under the general rule just quoted, that the interpleader could not be surprised that its adversary introduced such testimony, and if it was, it was its duty to make known the fact of its surprise at the trial, a thing which it neglected to do. Recognizing the rules above quoted, the judgment cannot be reversed on the ninth ground. ■ It appearing then that the record is barren of error warranting a reversal of the judgment, the judgment is affirmed. Reynolds, P. J., and Nortoni, J., concur.