Pemberton v. Buescher and Peek

DISSENTING OPINION. Regardless of the fact that the Supreme Court of Missouri has, in Dove et al. v. Atchison, T. S.F. Ry. Co., 163 S.W.2d 548, placed burden as stated in majority opinion, and further, regardless of the fact that said court has, in King v. Kansas City Life Ins. Co., 164 S.W.2d 458, l.c. 462, in effect, in matters wherein the trial court does not state reason for granting a new trial, substituted the presumption that his act was based upon weight of evidence, for the presumption that he has acted upon it adversely, I cannot concur in the majority opinion herein.

My dissent is not based upon the ground that said decisions do not declare the law as applied to the situation presented in said cases. My dissent is based upon a situation presented in the case at bar which does not appear in said decisions, to-wit: The respondent herein is shown to have filed a motion requesting the trial court to perform a duty imposed by statute (Sec. 1169, R.S. Mo. 1939), and the trial court failed and refused to comply.

By reason of late decisions of the Supreme Court, supra, a novel situation has arisen which I conclude presents to this court a matter of first impression wherein it is our duty to act.

The writer concludes that the failure of a court to perform its statutory duty, when requested so to do, should not be permitted to penalize a litigant.

The cause should be remanded with mandate to trial court to perform his duty, imposed by statute, supra, and return to this court for review, when such statutory duty has been complied with.