Chrisman v. Scholl

164 S.W. 131, 177 Mo. App. 58, 1914 Mo. App. LEXIS 28

• Court: Missouri Court of Appeals
• Decided: January 16, 1914
• Status: Published

Opinion

ELLISON, P. J.

Plaintiff’s action was brought by attachment for rent as evidenced by a promissory note of $100. The suit was begun before a justice of the peace and the attachment was dismissed before trial day and the case afterwards tried on merits. Before trial plaintiff amended by adding other items connected with the renting and defendant filed a counterclaim. Defendant prevailed and plaintiff appealed to the circuit court in which court there was a finding for the note and some of the items claimed by plaintiff aggregating $113.02 and a finding for defendant on his counterclaim of thirty dollars; the balance being in favor of plaintiff of $83.02, for which judgment was rendered.

Defendant complains in his brief of rulings on his motion to compel plaintiff to elect and to “allowing any items to plaintiff other than the note,” but these .alleged errors are not mentioned in the motion for new trial and consequently we cannot notice them. [St. Louis v. Lawton, 189 Mo. 474; Fender v. Hasseltine, 106 Mo. App. 28.]

The second and third grounds of complaint urged in the brief amount to an objection that the finding was against the evidence and that objection is found in the motion for new trial. The case was tried by the court without a jury and no instructions were asked. We must therefore assume that the case was tried upon a proper legal theory and if there is any substantial evidence supporting the finding we must affirm the judgment. [Jordan v. Davis, 172 Mo. 599, 608, Brix v. Fidelity Co., 171 Mo. App. 518, 524; Huke v. Transfer Co., 146 Mo. App. 355.]

We have gone over the evidence and find ample of a substantial character to justify the court’s finding. We have therefore no right to interfere and hence affirm the judgment.

All concur.