Bemis Bros. Bag Co. v. Ryan Commission Co.

1. Practice, Trial: setting aside judgment on motion <for new trial: discretion of trial judge. Trial courts have a large discretion in granting a new trial on motion wherein it is alleged that the verdict and judgment are against the evidence and the weight of the evidence, the only limitation being that their discretion must not be abused. 2. -: -: evidence: practice, appellate. -In the ease at bar while the testimony for plaintiffs afforded cogent evidence that the bill of sale to the claimant was a fraudulent contrivance for the use of the Ryan Commission Company, we are unwilling to say that the evidence sustaining this theory was so convincing as to exclude every rational inference to the contrary, and .we give the ruling of the court below the benefit of the doubt.

Appeal from the St. Louis City Circuit Court. — Hon. Seldon P. Spencer, Judge. Under the law and the facts as conceded by claimant’s own testimony, there was no consideration for the bill of sale read in evidence, and the same is presumptively void as against the then creditors of the Ryan Commission Company, including plaintiff. The mere giving of a negotiable promissory note even by a hona fide grantee to a grantor does not prima facie entitle the grantee to protection as against the existing creditors of the grantor. To entitle the grantee to protection it must be shown that the consideration was paid before notice of any fraud of the grantor reached him, or if he gave a promissory note, that said note had been negotiated and was in the hands of an innocent purchaser when he became aware of the fraud of the grantor. R. S. 1889, sec. 5169; Greenlee v. Marquis, 49 Mo. App. 290; Wetmore v. Woods, 62 Mo. App. 265. While on an appeal from an order sustaining a motion for a new trial the appellate court is not confined to the examination of the grounds on which the trial court. based its action in sustaining the motion, yet in this case if the trial court erred in sustaining the motion, for a new trial on the second and and third grounds, and if under the law and the facts, judgment must be for plaintiff, it will be unnecessary for this court to examine the propriety of the trial court’s action on other grounds of the motion. In other words if under the law and the facts as conceded by claimant’s own testimony, judgment must be for plaintiff, it is wholly immaterial as to whether errors were committed at the trial covered by other grounds of the motion for a new trial, and the trial court’s order setting aside the judgment and ordering a new trial must be reversed. The action of the trial court in sustaining claimant’s motion for a new trial on the second and third grounds thereof means that under the law and the facts of this case the property levied on belonged to claimant at the dates of the levies. Such a holding, under the facts and circumstances of this case, seems to us violative of every principle of law and justice. A jury under that ruling is not even permitted, under the facts and circumstances of this case, to pass on the question as to whether a note was in fact given by claimant, or if given whether given in good faith. Nor is it to be permitted under the faets and circumstances of this case to pass on the question whether or not (if claimant did give a note in good faith, and if the same constitutes a consideration) she in any manner participated in or knew of any fraud of the grantor in making said transfer. It was not error for the trial court to overrule appellant’s motion to vacate its order granting claimant a new trial. The law does not require or provide for the filing of such a motion or grant an appeal from any action respecting it. R. S. 1889, sec. 2246, as amended by laws of 1895, p. 91. Where, as in this case, the bill of exceptions is in part a skeleton bill and contains mere directions to insert parts of the evidence admitted at the trial, and appellant has not in any way fulfilled said directions and has not copied it into the record brought up by it to the appellate court, said court will not review the action of the trial court- in awarding a new trial on the ground that the verdict is against the evidence and the weight of the evidence. R. S. 1889, sec. 2304; Jefferson City v. Opel, 67 Mo. 394; Epstein v. Clothing Co., 67' Mo. App. 231; Robinson v. Rice, 20 Mo. 229, 236; Helm v. Gore, 65 Mo. 430; State v. Steen,115 Mo. 477. It is the duty of the appellant to see that a complete record is transmitted to the appellate court; and where the record is evidently incomplete the presumption is in favor of the correctness of the rulings of the trial court. Vaughn v. R. R., 34 Mo. App. 141, 144; Routsong v. R. R.r 45 Mo. 236; Perth v. Gilbert, 35 Mo. 135; Christ v. R. R., 36 Mo. App. 663. The trial courts have large discretion in the matter of granting new trials upon the weight of the evidence and appellate courts will not. interfere with such discretion unless it be made to appear plainly that it was improvidently exercised. Baughman v. Pulton, 139 Mo. 557, 559; Bank v. Wood,' 124 Mo. 72, 77; Shaughnessy v. R. R., 68 Mo. App. 152, 155; Thompson v. R. R., 41 S. W. Rep. 459; Garneau v. Herthel, 15 Mo. 191; Parker v. Cassingham, 139 Mo. 340; Hewitt v. Steel, 118 Mo. 463, 472, 474. It is well settled in this state that appellate courts will not, where there- is a substantial conflict in the evidence as to some material issue of fact, review the action of the trial court granting a new trial, because the verdict is against the weight of the evidence, it being the exclusive province of the trial court to weigh the evidence. Shaughnessy v. R. R., 68 Mo. App. 155; Baughman v. Pulton, 139 Mo. 559; Bank v. Wood, 124 Mo. 77. The trial court was right in setting aside the verdict; the case should not have been submitted to the jury, and judgment for claimant should be rendered by this court. R. S., sec. 2304; Baker v. Harvey, 133 Mo. 653; Grocery Co. v. Ashton, 69 Mo. App. 463, 469; Williams v. Tye, 42 S. W. Rep. (Ky.) 90; Nelson v. Tendon, 42 S. W. Rep. (Tenn.) 8; Ligón v. Tillman, 43 S. W. Rep. (Tex. Civ. App.) 1069; Jacobs v. Totty, 76 Tex. 343; s. c., 13 S. W. Rep. 372; Cummings v. Hurlbutt, 92 Pa. St. 165.