Ford v. Fidelity Storage Packing & Moving Co. , 138 Mo. App. 512 ( 1909 )

REYNOLDS, P. J.

(after stating the facts). — We are led to remark that the second count of the answer should not have been permitted to stand. It is full of recitals of evidential matters, which should have been stricken out on proper motion.

The finding of the court, when it rendered judgment in the case, and also its finding on overruling the motion for new trial, are in the transcript. An examination of them discloses that the trial court found, on the evidence in the case, that the property of the machine was in plaintiff and that defendant had converted it, and the court rendered judgment for $435.20. There was much conflict in the testimony, the determination of the case resting very largely on the credibility of the witnesses. That being so, the finding of the trial judge is conclusive on us.

In passing upon and overruling the motion for a new trial, the circuit judge held that the affidavits of Clege and of May, the secretary and treasurer of the defendant, each of them tending to show certain alleged admissions of plaintiff tendered testimony which was merely cumulative. He further finds that the affiant Ford, the man who knew the facts as to the ownership, so far as shown by the affidavit, was within reach of defendant at all times even being at one time in its employ. He had asked to file an intervening petition in the case, showing that he was the owner of the automobile and that plaintiff had no interest in it, and that intervention had been denied by the judge before whom the case had formerly been pending. The learned trial judge said as to this affidavit, that Ford “was the man of all others whom the defendant relied on ip the transaction, and the witness who should have been called at the trial, but was not called. Whether he would have been competent to testify was not submitted to the court as he was not offered.” The court further finds that the matter connected with the Pettis county land and the note and deed relating to it, were all known to the 'defendant at the trial, certified copies of the deeds being introduced; that there was no show of any diligence whatever on the part of defendant to ascertain what Wm. E. Ford knew, and while Ford swears he did not tell defendant of this Pettis county transaction, there is no evidence whatever tending to show that defendant sought to know the facts from him or that Ford concealed the facts from it, and no showing of any diligence whatever on the part of defendant in endeavoring to find out the alleged new facts before the trial.- Holding that the motion and accompanying affidavits did not show grounds for new trial, as required by the appellate courts, the circuit court overruled it. With this statement of the facts before us, over the signature of the circuit judge, who tried the case, we find no reason whatever to disturb his action in overruling the motion for new trial.

The judgment of the circuit court is affirmed. All concur.