Warner v. Michel ( 1909 )

REYNOLDS, P. J.

(after stating the facts).— Argument is made by the counsel for the appellants that as the court had overruled demurrers interposed to the evidence at the close of plaintiffs’ case, as well as at the close of the whole case, that its action was tantamount to holding that the plaintiff had made out its case. That does not follow. It has been held by our Supreme Court that “strictly speaking, sustaining a demurrer to the evidence in an equity case means the same that it means in a law case; it means that there is no evidence tending to sustain the plaintiffs’ case, and therefore none for the trier of fact to weigh. In a law case- the court might with propriety overrule a demurrer to the plaintiffs’ evidence and the jury-might with equal propriety find for the defendant; and the same is true in an equity case, the court might overrule the demurrer.to the plaintiffs’ evidence, and yet when the case is submitted on the evidence find for the defendant. In each case it means that as a matter of law there is some evidence to be weighed, but as a matter of fact the evidence when weighed by the trier of fact is not satisfactory.” [Anthony v. Kennard Building Co., 188 Mo. 704, 1. c. 718.] There is no incongruity, therefore, in the action of the conrt in at first overruling the demurrer to the evidence taken on each count and subsequently finding for the defendants and in refusing to take the case from the jury on the last count of the petition, and then setting that verdict aside. As will be noticed from the statement of the facts, which we have given very briefly and which wet do not think it serviceable to extend, we find no error in the action of the trial conrt in awarding a new trial. The evidence was conflicting, and it was for the trial judge, if he considered the verdict contrary to the weight of the evidence, to set it aside. Its judgment is affirmed and the case remanded for further proceedings.

All concur.