Hesse v. Seyp , 88 Mo. App. 66 ( 1901 )

BLAND, P. J.

The appeal is from an order of the circuit court of Clark county granting a new trial. The jury awarded plaintiff $750 actual and $250 exemplary damages. Within four days after the finding of the verdict, the defendant filed his motion for new trial. During the same term, but one month after the motion was filed, defendant by leave of court filed the affidavits of himself and attorney of record, setting up that since the trial and after filing the motion for new trial, the defendant had discovered new and valuable testimony, and filed in support of these affidavits, the affidavits of fifteen other persons to the effect that tbe moral character of plaintiff was bad. Plaintiff moved to strike out these affidavits, but the motion was overruled and the court sustained the motion on the.following grounds, to-wit: “The court is of the opinion that it erred in giving instruction No. Y on the part of the plaintiffs, and the court is further of the opinion, formed from the facts revealed from the affidavits filed and presented subsequent to the trial, that a wrong and injustice has been done the defendant and for that reason the court should, upon its own motion, set aside the judgment. Therefore, the motion for a new trial is sustained and for the above specified reasons the judgment of the court is set aside and a new trial granted the defendant, he being required to pay all costs occasioned by the trial had at the present term of this court.”

When one of the grounds in a motion for new trial is the discovery of new and material evidence that would probably change the result, it is good practice, on a proper showing, to grant leave to file affidavits in support, and counter ones within a given time, which may be beyond four days from the date of the trial. The motion filed in this case did not state, as a ground, for new trial, the discovery of new evidence, and there was, therefore, nothing before the court, upon which to predicate leave to file affidavits of newly-discovered evidence or the affidavits of the discovered witnesses. The affidavits of defendant and his attorney seem to have been treated as an amendment of the motion. That the motion can not be amended after the expiration of the four days allowed in which to file it, is well stated by Judge Bubgess in the case of Mt. Vernon Bank v. Porter, 148 Mo. at pages 183-4. Therefore, the attempt to ingraft the affidavits of defendant and his attorney on the, motion for new trial as an amendment thereto, was a palpable violation of the statute, which requires motions for new trial to be filed within four days of the trial, and the motion filed by defendant to strike out these affidavits and the affidavits of the witnesses in support, should have been sustained.

II. Instruction No. Y given for plaintiff, and which the trial court adjudged erroneous, directed the jury, “that if they should believe from the evidence that the contract of marriage was to be consummated during the month of December, 1899, and that defendant, before that elate, failed and refused to marry the plaintiff, they should find for the plaintiff.” The suit was for a breach of a contract to marry. The first count in the petition alleged that defendant agreed to marry plaintiff on the twenty-fifth day of December, 1899. The answer admitted that the defendant agred to marry plaintiff, but denied that any time was ever fixed for said marriage. Admitted that he (at the time of filing his answer) declined to marry plaintiff, and pleaded several matters in mitigation of damages. The plaintiff swore that defendant agreed to marry her on December 25, 1899. Defendant swore that no time was ever fixed for the consummation of the marriage contract. The pleadings raised a square issue of fact as to the time agreed upon for the marriage, and there was a sharp conflict in the evidence of plaintiff and defendant on this issue, which the instruction (No. Y) squarely and correctly submitted to the jury. The contention that the instruction ignored the defense is not borne out by the pleadings. The defense was that no time for the marriage was ever fixed by the parties to the contract. All other allegations of the answer are in mitigation of damages, and there was nothing in the defense from which to qualify or modify the instruction.

The court, from the affidavits filed subsequent to the trial, was of the opinion that a wrong and injustice had been done and for that reason was of the opinion that the court should, upon its own motion, set aside the judgment. Thus it appears that the court, independently of the motion for new trial and from facts within its own breast, was moved to set aside the judgment and grant a new trial on the ground that the court was of the opinion an injustice had been done. • It is a well-settled law that courts having common law jurisdiction, possess the inherent power to set aside their judgments at any time during the term at which they were rendered, with or without motion, where the judge is of the opinion, that, for any reason, an injustice has been done or a fair trial was not had. Head v. Smith, 83 Mo. App. 287, and cases cited. And when this discretionary power has been exercised, appellate courts will not interfere with it, unless it has been arbitrarily and oppressively used. Scott v. Smith, 133 Mo. 618; Rottman v. Schmucker, 94 Mo. 143; Nelson v. Ghiselin, 17 Mo. 665. There is no indication that the exercise of this power was arbitrarily or oppressively exercised by the court in this case, and we affirm the judgment.

All concur.