King v. Mann , 208 Mo. App. 642 ( 1921 )

This cause of action is of long standing, and is now for the third time under consideration in the appellate courts of this State. The facts can be found stated in the opinion in the case of King v. Mann, 199 S.W. 705, and particularly in King v. Mann, 207 S.W. 836. The judgment appealed from at this time was rendered in the circuit court of St. Clair county, where the cause was taken on a change of venue. After it was submitted to the jury on instructions and a verdict rendered for the defendant, the trial court granted a new trial without stating any reasons therefor in passing upon a motion for new trial which contained a number of grounds set out by plaintiff in the same cause below, respondent here.

From the record in the case before us, and from the opinions of the Kansas City Court of Appeals heretofore referred to, there is nothing before us to show that the trial court had ever granted a new trial on the ground that any of the judgments rendered were against the weight of the evidence. It has been repeatedly held that where such ground is in the motion for new trial and the reasons for a new trial are not given in the order sustaining such motion, the appellate court can and must assume that it was granted on that ground, which is solely within the province of the trial court. The motion for a new trial in this case had several other grounds on which the court might have well granted a new trial. We must, therefore hold that the appeal from the order sustaining the motion for new trial is improvidently taken.

It has been held that where an order granting a new trial does not specify the ground upon which it is sustained, on appeal the order will be sustained if it is good upon any ground set out in the motion. [Metropolitan Lead Zine Co. v. Webster,193 Mo. 351, 92 S.W. 79.] And, it is further held that whenever the trial court is satisfied that the verdict of the jury is the result of passion and prejudice, it is his duty to grant a new trial, and that such discretion will not be interfered with unless abused. [Rigby v. Transit Co., 153 Mo. App. 330, 133 S.W. 110; Claybaugh v. Railroad, 56 Mo. App. 630.]

Trial courts have wide discretion in passing on motions for new trials, and the presumption obtains in the absence of a showing to the contrary that such trial court did not violate section 1453, Revised Statutes of Missouri, 1919, in granting a second new trial. [Oliver v. Railroad, 211 S.W. 699.]

This, we think disposed of the appeal in this case on the matter of procedure or practice. We are, however thoroughly convinced that under the admitted record evidence and the testimony of the defendants as to what the contract was, there should be a direction to a jury to find a verdict for the plaintiff. Taking the defendant's version of the contract and transactions involved as true and eliminating any oral evidence of the plaintiff, there is no legal defense to this action. To be brief, defendant says that he employed the plaintiff to file a suit in the circuit court to set aside a trustee's sale which had been made, according to his theory, to defraud him out of his property in a corporation, and he says that he employed the plaintiff to bring that suit in the circuit court of Vernon county and to fight it in good faith to a final determination in the circuit court, and that he agreed to pay him $100 if he fought the case to final determination in the circuit court and lost; or to pay him $200 if he fought it to final determination in the circuit court and won. The record evidence before us shows that the suit was filed, the petition being set out in our record; it shows that the defendants in that suit filed a general demurrer to the petition. It further shows that the court heard the demurrer and sustained it, and that leave was granted by the court to amend his petition on or before the next term of court.

Defendant testified that he stated to the plaintiff, his lawyer in that case, all of the facts that he knew concerning his cause of action and that his attorney read him the petition and that it contained a statement of the facts which he had given to him, and it was on that first petition that the demurrer, after consideration by the trial court, was sustained. That, without more, was a final determination of that cause of action in the circuit court and entitled the plaintiff to a fee of $100 under defendant's own testimony. Leave was granted, however, to file an amended petition. There is no intimation that in the filing of the original petition or in any conduct or actions of the plaintiff in the trial of the demurrer to the first petition there was any negligence, misconduct or bad faith, but on the other hand the record in the case before us shows that it was heard and understood by the trial court and sustained.

If the first petition contained all of the facts that the defendant had and had given to his attorney, the plaintiff herein, and those facts were set out in the petition and the court sustained a general demurrer to it, such action could be classified as nothing short of a final determination of that case, and under the defendant's testimony the plaintiff earned his fee at that point. Now, what did the plaintiff do thereafter that in any way forfeited that earned fee? It is true he asked leave to file an amended petition, and that was granted. That, however, was a matter that was done by him solely for the protection of his client, a practice which every lawyer and judge knows is constantly engaged in by lawyers whose petitions have gone out on demurrer, hoping that they can find some new fact in their client's favor which they can put in an amended petition and will stand the test of a demurrer.

After the demurrer to the first petition had been sustained, and before the next term of court, the plaintiff filed another petition which he called an amended petition, a copy of which is in the record before us. We have examined the two petitions, the first to which a demurrer was sustained, and the second which was filed, and the second does not contain one substantial or material fact or ground different from the first. The only difference between the two petitions is that the second petition tendered into a court a sum for security to be paid to the purchaser under the deed of trust in case the sale to him was set aside.

The case then presents itself in this wise: a petition had been filed and placed upon in the circuit court and a general demurrer thereto had been sustained. Another petition, in nowise different so far as the substantial grounds upon which the petition attempted to state a cause of action was based was filed. The record shows that at the next term of court the plaintiff's attorney voluntarily dismissed the cause, and it is because of this action of voluntarily dismissing this second amended petition, which was in nowise different from the original petition upon which there had been a final determination, that the defendant here attempts to defeat the plaintiff's cause of action because, as defendant says, the record shows that he voluntarily abandoned his case.

Without going into the oral evidence of the plaintiff, which was undisputed, that he did argue the second demurrer to the amended petition and before voluntarily dismissing the case, having an intimation from the court that he was going to sustain the demurrer, and for that reason rather than see any rights his client may have had forever foreclosed, he voluntarily dismissed, we conclude that the record evidence which we have heretofore detailed, when the two petitions are presented to us, clearly shows that he had procured a final determination of the case which was presented to him by the defendant when the trial court sustained the demurrer to the first petition. The very purpose of granting leave to file an amended petition is that some new substantial matter which the first petition did not contain would be contained in an amended petition to be filed, and where the testimony of the defendant in this case shows that there were no new facts to be presented in the amended petition because all had been stated in the original petition, the action of the attorney in voluntarily dismissing it was in perfect accord with good faith and good practice as we know it in this State. The defendant, if he had a cause of action at all, had it stated in the first petition. This he admits, because he says there were no new facts that he could give his attorney to plead after the demurrer to the first petition had been sustained.

The only conclusion that common sense and justice could arrive at would be that the determination of the first demurrer to the original petition filed in the circuit court was a final determination of the defendant's rights. It is said in the case of State ex rel. v. Klein, 140 Mo. 510, 41 S.W. 895: "By a final judgment the rights of the parties in respect to the matter litigated, are settled and concluded, so far as the court which rendered it is concerned." And, it is held in the case of Carpenter v. Landry, 101 S.W. 278, that: "It is settled law in this State (Texas) that a judgment sustaining a general demurrer is a final and conclusive as if rendered upon a hearing of the facts that, if such judgment is not appealed from, the plaintiff is thereby precluded from recovery in another suit between the same parties upon the cause of action to which such demurrer had been sustained."

We, therefore, must hold that the undisputed testimony of the defendant and the undisputed record evidence of the proceedings in court clearly show that the plaintiff had performed his contract and had earned his fee. The whole record is in practically the same condition before us as it appeared before the Kansas City Court of Appeals, as shown by opinions rendered in King v. Mann, 207 S.W. 836, and in that opinion the court dealt with the question of plaintiff's oral testimony on the second demurrer and held that there could be no directed verdict for the plaintiff for that reason. The opinion does not show that the question on which we have decided this case was raised or considered in that court, yet as we have said, the whole record was before that court, and on such it held that it was error to direct a verdict for plaintiff, and for that reason it will be necessary for us to certify this case to the Supreme Court.

It is, therefore, the judgment of this court that the action of the trial court in granting a motion for new trial was proper, and were the case not transferred to the Supreme Court it would be the order of this court that the circuit court in which this case was tried enter a judgment in favor of the plaintiff for $100 with interest and costs. Because this judgment is apparently in conflict with the decision of the Kansas City Court of Appeals in King v. Mann, 207 S.W. 836, the cause is certified to the Supreme Court for final determination.

Cox, P.J., and Bradley, J., concur.