Opinion
May 2, 1945.
1. — New Trial. An allegation in motion for new trial that, under law and evidence, jury's verdict was for wrong party and should have been in moving party's favor, was insufficient to warrant review of evidence to show that verdict was excessive, inadequate, unsupported by evidence in any respect, or erroneous in any specific particular.
2. — New Trial. Authority, on motion for new trial, to order remittitur because of excessive verdict is limited to cases wherein jury finds for more than amount authorized by pleadings, facts and instructions.
3. — New Trial. Where defendant, in motion to assess damages because of temporary mandatory injunction, which was dissolved, properly pleaded damages and asked for specific amount thereof, and jury's verdict awarding damages was sustained by ample competent and substantial evidence and within limits fixed by instructions, court had no authority, on plaintiff's motion for new trial, to order remittitur by defendant on ground that verdict was excessive.
4. — New Trial. The trial court was without authority to sustain plaintiff's motion for new trial on grounds not within scope of assignments therein at any term after that at which jury's verdict for defendant was returned and judgment rendered thereon.
5. — New Trial. The trial court's authority to grant new trial at term after that at which jury's verdict is returned and judgment thereon rendered is limited to grounds set up in motion timely filed at trial term, and in such respect court's authority is as broad and comprehensive as at trial term.
6. — New Trial. Where trial court states ground on which it sustains motion for new trial, as required by statute, such ruling is treated in effect as overruling motion as to other grounds therein stated.
7. — New Trial. The trial court's ruling, granting new trial at term subsequent to judgment term on grounds not within scope of pending motion for new trial, should be treated as overruling such motion.
8. — Injunction. Defendant's failure to notify sureties on plaintiff's mandatory injunction bond of judgment assessing damages on bond at term subsequent to that at which motion for damages was filed did not affect judgment against plaintiff, who appeared and participated in trial on such motion.
Appeal from Circuit Court of Douglas County. — Hon. Tom R. Moore, Judge.
REVERSED AND REMANDED.
Green Green for appellant.
Where new trial was granted at a subsequent term of court, trial court could not grant new trial upon any ground other than that set up in motion for new trial. Smith v. Staley, 156 S.W.2d 766; Thurman v. Wells, 251 S.W. 75; Bank v. Parker Corn Co., 245 S.W. 217; Inzerrello v. R.R., 35 S.W.2d 44; Smith v. Public Service Co. (Mo., en banc), 43 S.W.2d 548; Beer v. Martel, 55 S.W.2d 482; Landau v. Mill, 36 S.W.2d 921. Authority on motion for new trial to order remittitur on account of excessive verdict is limited to cases where the jury finds for more than the amount authorized in pleadings, facts and instructions. City of Kennett v. Katz Const. Co., 202 S.W. 558; City of Kennett v. Katz Const. Co., 273 Mo. 279. Wherein the motion for new trial as in this case it is stated "under the law and the evidence and upon the whole case the verdict was for the wrong party, such assignment is insufficient to permit a review of the evidence" to show the verdict was excessive, or inadequate or erroneous in any specific particular. Marsters v. Bray, 85 S.W.2d 479; Bond v. Williams, 214 S.W. 202, 206; Mathews v. Carnes, 9 S.W.2d 628; Campbell v. Campbell, 20 S.W.2d 655; Greer v. Carpenter, 19 S.W.2d 1046; Clay v. Owens, 93 S.W.2d 914-915; State ex rel. Ward v. Trimble, 39 S.W.2d 372-375; Pierson v. Stifer, 52 Mo. App. 273; Smith v. Staley, 156 S.W.2d 766. In jury cases judge has broad powers in granting new trials but discretion must not be exercised arbitrarily or unreasonably. Herbert v. Howley, 32 S.W.2d 1095; McDonald v. Heinemann, 141 S.W.2d 177.
G.W. Rogers and Paul Boone for respondent.
The bondsmen should have been notified or the case dismissed as to them. Robertson v. Glenn, 205 Mo. App. 89; Konta v. Stock Exchange, 150 Mo. App. 617; Pegram v. Lee, 199 S.W. 433; Hoffelmann v. Franke, 96 Mo. 533, 10 S.W. 45. Evidence as to the damage to crops and fruit trees should have been excluded. (1) The testimony shows that the damage, if any, occurred after defendant was permitted to place a gate across the pathway. (2) The only damage which was the natural result of the temporary injunction was the cost of building the gate and securing the dissolution of the temporary injunction. The court should not have given Instruction number 1. (1) It allowed the jury to take into consideration the damage to crops and fruit trees, said damage, if any, taking place after the modification of the temporary writ.
This is an appeal from the order of the Circuit Court of Douglas County granting plaintiff a new trial in an injunction proceeding.
In January, 1941, W.A. Warden filed a petition consisting of two counts in the Circuit Court of Ozark County against Luther Southards. In the first count of the petition plaintiff alleged that he had a private road by prescription across defendant's land; that defendant was obstructing said road and plaintiff prayed for injunctive relief and for $100 damages.
In the second count he alleged that he is the owner of certain lands adjoining that of defendant; that there is a road leading from his residence across defendant's lands to Bryant Creek; that he had used said road for more than ten years and had an easement therein; that defendant had obstructed same to the irreparable damage of plaintiff; that by reason thereof he had been forced to abandon said road and damaged in the sum of $100. Prayer was for a mandatory injunction and for $100 damages.
A change of venue was granted to Douglas County where it was finally tried at the September Term, 1942, resulting in a verdict and judgment for plaintiff on the first count and for defendant on the second count of plaintiff's petition. Motion for a new trial was timely filed and continued to the next regular term of said court, at which time the motion was overruled. Whereupon defendant immediately filed a motion for assessment of damages by reason of dissolution of the injunction on the second count of plaintiff's petition, in which motion he alleged that by reason of said mandatory injunction on the second count he was damaged in the sum of $200. The cause was continued from time to time until the September Term, 1943, when it was tried before a jury resulting in a verdict in favor of defendant for damages in the sum of $100.
Thereupon plaintiff filed a motion for a new trial and the matter was continued on motion to the January Term, 1944, at which time the Court made an order holding that in his opinion damages were excessive in the sum of $65 and if defendant Southards would remit said sum the motion would be overruled; otherwise it would be sustained. Defendant refused to file a remittitur and motion for new trial was sustained. From this judgment defendant appeals.
Defendant's Assignment of Errors are as follows:
"A. The Court erred in granting a new trial in this cause on the ground the verdict returned by the jury was excessive . . .
"B. The motion for new trial having been passed upon at a term subsequent to the term when the verdict was returned the Court had no authority to grant a new trial on a ground not stated in the motion . . .
"C. Under the law and the evidence the trial court acted arbitrarily and unreasonably in granting a new trial in this cause and abused his discretion, if any, in so doing."
The sole question for this court to determine is whether or not the trial court erred in granting plaintiff a new trial. In considering the motion the trial court made and entered of record the following order:
"This being an action of damages on Injunction Bond and the verdict of the jury being for the sum of $100. The Court is of the opinion that such damage is excessive in the sum of $65 on property damage. Being of the further opinion that as the tract of land was unenclosed on a certain side except by a stream of water and property damage is excessive and which the Court finds "in the sum of $65 or near such amount is against the weight of the evidence, and if the Obligee of the bond, Mr. Southards, will remit the sum of $65 allowing the judgment to stand in the sum of $35, the motion for new trial will be overruled. If not, the motion will be sustained. The $35 item covering attorney fee and expenses of dissolving said injunction."
There is no charge in the motion for a new trial that the verdict is excessive. Nothing from which it could be inferred that plaintiff challenged the verdict as being excessive. The only allegation contained therein respecting the verdict is as follows: "Because under the law and the evidence and upon the whole case the verdict was for the wrong party and should have been in favor of W.A. Warden."
Such an assignment is insufficient to warrant review of the evidence "to show the verdict was excessive or inadequate, or unsupported in any respect by evidence, or erroneous in any specific particular." [Masters et al. v. Bray, 85 S.W.2d 479, and cases cited therein.]
In the case of City of Kennett v. Katz Const. Co., 202 S.W. 558, 273 Mo. 279, it is held that authority on motion for new trial to order remittitur on account of excessive verdict is limited to cases where the jury find for more than the amount authorized by the pleadings, facts and instructions.
Here, defendant, in his motion, properly pleaded the damages sustained as a result of the temporary mandatory injunction which was later dissolved and asked for $200 damages. There is ample competent and substantial evidence to sustain the verdict of the jury and its verdict was within the limits fixed by the instructions.
The ground upon which the court granted a new trial, as indicated above, does not appear in plaintiff's motion for a new trial. Sustaining plaintiff's motion on grounds not within the scope of the assignments contained therein is tantamount to granting a new trial upon the Court's own motion. This the trial court was without authority to do at any term subsequent to the judgment term. The authority of the trial court to grant a new trial at subsequent term is limited to the grounds set up in the motion timely filed at the trial term, and in that respect his authority is as broad and comprehensive as at the trial term. [Beer et al. v. Martel, 55 S.W.2d 482; Taylor v. Cleveland C.C. St. L. Ry. Co., 63 S.W.2d 69, and cases therein cited.]
Moreover, "It is the established rule in this State that, where the Court as required by statute, states the ground upon which it sustains a motion for new trial, such ruling is treated in effect as overruling the motion as to other grounds therein stated, . . ." [Taylor v. Cleveland C.C. St. L. Ry. Co., supra.] Therefore, the inference may be drawn that where the trial court grants a new trial at a term subsequent to the judgment term on grounds not within the scope of the pending motion for a new trial his action should be treated as overruling the motion.
Plaintiff complains that the Bondsmen were not notified and that notice is essential where trial on motion to assess damages on injunction bond and judgment is had at a term subsequent to which the motion for damages was filed. In the instant case the jury rendered the following verdict: "We the jury find the issues for the defendant, Luther Southard and we assess the damages in the sum of $100." If there is any merit in plaintiff's contention, failure to notify the bondsmen should not affect the judgment against the plaintiff who appeared and participated in the trial on the motion to assess damages.
The action of the trial court in sustaining plaintiff's motion for a new trial for the reasons stated in his order of record is overruled and the cause remanded with directions to the trial court to enter judgment in favor of defendant and against the plaintiff, W.A. Warden, in accordance with the verdict of the jury. Blair and Vandeventer, JJ., concur.