Publication: Heberling v. Moudy. nor is there any evidence the one is a corruption of the other in general use. While both seem to be foreign names no evidence as to their pronunciation in in any language was offered and the usual rules as to English pronunciation must be applied. Numerous cases are cited in which the introduction of the letter "r" after a vowel (as in this case) has been held innocuous. Some of these cases concern names of common derivation, some disclose one of the names considered was a corruption of the other, and in others the introduction of the "r" did not change the sound of the vowel it followed. This case falls within none of these classes. The difference in sound is that between "he" and 'her," one the attentive ear finds no difficulty in recognizing. Some of the cases go far enough to support a holding that these names are idem sonans, but our own decisions (Simonson v. Dolan, 114 Mo. 176; State v. Havely, 21 Mo. 498; Miller v. Medley, 236 Mo. 694) announce the rule as stated which is generally accepted and nowhere directly controverted and the application of which must result in our holding the order of publication in the suit affecting the southeast quarter of the section to be bad and defendant's claim to that tract, therefore, unfounded. The judgment is affirmed as to the last mentioned tract, and, as to the remainder of the land involved, it is reversed and the cause remanded with directions to enter judgment for defendant. PER CURIAM.-The foregoing opinion of BLAIR, C., is adopted as the opinion of the court. All the judges concur. Honea v. Railroad. MARY HONEA, Appellant, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY. In Banc, January 13, 1913.* Per GRAVES, J., with whom BOND and FARIS, JJ., concur. 1. JUDGMENT: Power to Set Aside During Term: Motions After Rehearing Overruled: On Request Amici Curiae. The Supreme Court holds within its breast all its judgments until the end of the term, and although a motion for a rehearing has been overruled, it can set aside any judgment it has rendered at any time before the term has ended, either of its own motion, or on the motion of the losing parties, or upon the suggestion of any amicus curiae, 2. : -: More Than One Motion for Rehearing. The rule of the court against the filing of more than one motion for a rehearing was never intended to preclude the Supreme Court from exercising its inherent right to change its judgment at any time during the term, if it is of the opinion that its judgment is wrong, nor does it preclude the court from setting aside a wrong judgment upon the bona fide suggestion of an amicus curiae. 3. EXCESSIVE VERDICT: New Trial: Reinstated by Appellate Court. Where the plaintiff obtained a verdict, and the court, upon a motion for a new trial, containing, among other grounds, a charge that the verdict was excessive, granted a new trial on the ground of supposed error in an instruction given, and, plaintiff appeals, the Supreme Court, after determining that the in *NOTE.-This case was decided In Banc, and a motion for a rehearing was overruled on November 14, 1912, and the opinion of the court and the opinions on the motion for a rehearing are reported in 245 OM. 621. After said motion was overruled and the opinions certified to the Reporter, a motion amici curiae, asking the court to set aside its judgment, was filed, an doverruled, and upon that motion an opinion was written by GRAVES, J., and filed on January 13, 1913, and that opinion is the one here published. It was not received by me in time to be published in connection with the main case, and hence its publication here. It should be read in connection with the opinions of LAMM, GRAVES and BROWN, JJ., 245 Mo. 621, 647 and 652.-Reporter. 4. 5. Honea v. Railroad. struction was not error, cannot direct the trial court to set aside its order granting a new trial and reinstate its judgment, if the court are of the opinion that the verdict is in any wise excessive, whether slightly or grossly. And a majority of the judges who took part in the decision, having been of the opinion that the verdict was excessive, the judgment of the trial court granting a new trial should be sustained, even upon the suggestion amici curiae after motion for rehearing has been overruled. : :Point Raised by Motion for New Trial: Discretion. Nor does it matter that the trial court granted a motion for a new trial, on the ground that an instruction given was erroneous, if the motion also charged that the verdict was excessive. The Supreme Court is bound to consider the grounds assigned in the motion, whether or not they were ignored by the trial court, and if any one of them is sufficient ground for a new trial, the order allowing it should be upheld, and cannot be overridden without interfering with the discretion of the trial court. And if a majority of the Supreme Court are of the opinion that the verdict is excessive, and its excessiveness was one of the grounds of the motion, it would be interfering with the trial court's discretion to hold it erred in granting a new trial. The Supreme Court can set aside a verdict for excessiveness only when its excess is such as to shock the conscience of the judges. It cannot interfere with the discretion of the trial court in setting aside a verdict for excessiveness, unless it is apparent that the discretion has been abused. : : Not Suggested in Brief. Where defendant filed a motion to set aside a verdict for plaintiff, charging, among other things, that the verdict is excessive, and the court sustains the motion on the ground that an instruction given was erroneous, and plaintiff appeals, and the Supreme Court holds the instruction was not erroneous, the fact that the respondent did not suggest in its brief that the verdict was excessive, does not preclude the Supreme Court from sustaining the order on that ground. The respondent has a right to stand mute. It devolves on the appellant to show that the trial court committed error in granting a new trial; not upon respondent to show its ruling was correct. Respondent can impose on the court the duty to examine all the grounds contained in the motion for a new trial. ON SUGGESTIONS AMICI CURIAE. GRAVES, J.-This matter now comes up on a motion amici curiae. The motion for a rehearing has been filed and overruled, but the term of the court has not yet expired. That this court, like a circuit court, Honea v. Railroad. holds within its own breast all of its judgments until the end of the term needs no citation of authority. That the humblest citizen of the State, whether he be a lawyer or a layman, can come and as amicus curiae humbly suggest to this court, or any other court, that its judgment tramples down legal rights and incurs legal wrongs, is likewise as firmly entrenched in the law of this State as elsewhere. That this court, of its own motion, during the term, can set aside a judgment which it has entered, although a motion for rehearing has been overruled, is evidenced by what we have done in the following cases, viz.: Williams v. Butterfield, 182 Mo. 181; Hollenbeck v. Railroad, 141 Mo. 97. The same rule is also explicitly recognized by this court in the very recent case of Ewart v. Peniston, 233 Mo. 695, and by the Court of Appeals in Young v. Railroad, 113 Mo. App. 636. What the court can do of its own motion it can do upon suggestions amici curiae, it matters not how high or how low these professed friends of the court may be. Nor should it be material to the court seeking to announce correct principles of law whether the suggestions of error are upon questions purely of public benefit, or whether back of the suggestions may be some personal interest. A court like this should be glad to consider any suggestion of our error, if it be made in good faith. Our one object should be to have our judgments speak the law, and we should make them so speak so long as we have control over them. That this court should not ignore or refuse to investigate the suggestions amici curiae filed in this case is thoroughly shown in the following cases: Florida v. Georgia, 15 L. Ed. (U. S.) 181, and note; The Gray Jacket, 5 Wall. (U. S.) 370; Parker v. State ex rel., 18 L. R. A. 567; State ex rel. v. Rost, 49 La. Ann. 1451; Robinson v. Lee, 122 Fed. 1010; Ex parte Yeager, 11 Gratt. 655; People v. Gibbs, 70 Mich. 425; Bass v. Fontleroy, 11 Texas, 699; Irwin v. Armuth, Honea v. Railroad. 129 Ind. 1. c. 342; Jones v. City of Jefferson, 66 Texas, 576. But we need not analyze authorities. That this court upon its own motion can set aside its judgments in this court at any time during the term will not be denied. The only thing necessary is for the court to determine that its judgment is wrong. What it can do of its own motion it can do upon the suggestion of any person. The suggestion in such case is a mere light to the court. Nor was our rule against filing more than one motion for a rehearing ever intended to preclude this court from exercising its inherent right to change its judgment at any time during the term, if the court was of the opinion that its judgment was erroneous. If the rule does not preclude this action by the court upon its own motion, it certainly does not preclude the court from acting upon any bona fide suggestion that by our judgment we have made the court to appear in the wrong light. So that after all, the question comes, should we in justice to ourselves, as impartial judges of the law, permit our judgment to stand. My lips would be sealed but for the vital interest this case is to my fellow judges and members of the bar of this State. The mere fact of a railroad company having to pay the sum of ten thousand dollars is but a bagatelle of the consideration involved in the question before us. The real question of moment is, what have we done by our former opinion and what is the legal effect of that opinion? Further, how does the majority opinion affect the jurisprudence of Missouri? An answer to these questions seeks the facts of the case. In stating such facts I shall clearly hew to the written record. These are the facts: On trial nisi plaintiff had a verdict for ten thousand dollars. Motion for a new trial in the circuit 247 Mo.-35 |