Christopher v. White

42 Mo. App. 428, 1890 Mo. App. LEXIS 396

• Court: Missouri Court of Appeals
• Decided: December 1, 1890
• Status: Published

Opinion

Ellison, J.

This is an action for rent alleged to be due plaintiff on a lease executed by him to defend’ant. The circuit court gave a peremptory instruction that the jury should find for plaintiff, and defendant appeals.

When the complaint made to the action of the trial court is that the evidence did not justify a peremptory instruction, or, in other words, that the testimony was sufficiently contradictory as to justify its submission to the jury, it is quite apparent that such testimony should be set out in full in the appellant’s abstract, so that we may be enabled to pass upon the justness of the complaint. This court and the supreme court have frequently so ruled. Here, appellant’s version of the evidence is set out, and not the whole evidence itself, and so we will assume the court acted properly on the instruction, as we have no proper means of saying to the contrary. We may remark', however, that, from what does appear in the abstract, it would seem that the court’s action was justifiable from the defendant’s testimony in his own behalf.

IL When the jury returned their verdict under the instruction of the court, it read as a finding of two hundred dollars for the defendant, instead of plaintiff. The trial court thereupon ordered them to change it to read “plaintiff,” which they did. We think no error was committed in this respect. The verdict under instruction should have been for plaintiff; and, in the absence of any protest or objection from the jury to the change, we will assume what was unquestionably the fact, that the word “defendant” was inadvertently written in the verdict when “plaintiff” was meant.

The judgment is affirmed.

All concur.