
    JULIA MILBOURNE, Respondent, v. JOSEPH ROBISON, Appellant.
    Kansas City Court of Appeals,
    May 25, 1908.
    APPELLATE PRACTICE: New Trial: Appeal: Final Order. Plaintiff obtained judgment; defendant moved for new trial and Ms motion was sustained on one ground assigned. Plaintiff appealed and order granting new trial was affirmed. Subsequently defendant appealed because the trial court had refused to sustain his motion on certain other grounds. Held, the appellate court could have looked into that matter on former appeal had it been necessary, but the new trial, having been granted, there is no foundation for defendant’s appeal and it should be dismissed.
    Apeal from DeKalb Circuit Court. — Hon. Alomo D. Burnos, Judge.
    Appeal dismissed.
    
      Kendall B. Randolph, Hewitt & Hemtt and E. Q. Robison for appellant.
    (1) Plaintiff failed to perform the contract alleged. There was a plain abandonment of the contract alleged in the petition. Gabriel y. Brick Co., 57 Mo. App. 526; Freeman y. Aylor, 62 Mo. App. 613; Billups y. Doggs, 38 Mo. App. 367; Smith y. Coal Co., 36 Mr. App.' 567; Marsh y. Richards, 29 Mo. 99; Hayden v. Grillo, 26 Mo. App. 289; Craycroft v. Walker, 26 Mo. App. 469. (2) There is a failure of proof as to the contract alleged in the petition. The contract of September 10th -was abandoned and if a recovery could be had, it would necessarily be based on the conversation of January 28, 1906, at St. Joseph, and February 6, 1906, at the farm near Union Star. R. S. 1899, sec. 798; Whipple v. B. & L. Assn., 55 Mo. App. 554; Leslie y. Railway, 88 Mo. 50; Sumner v. Rogers, 90 Mo. 324; Price v. Railway, 40 Mo. App. 189; O’Brien y. Loomis, 43 Mo. App. 29; Reed v. Bott, 100 Mo. 62; Haynes v. Trenton, 108 Mo. 558; Feurth v. Anderson, 87 Mo. 354.
    
      Eastin, Corby é Eastin and William M. Fitch, for respondent, filed brief on merits.
   ELLISON, J.

Plaintiff instituted an action against defendant for damages for breach of promise of marriage and obtained a verdict in the trial court. Defendant moved for a new trial, assigning seventeen grounds therefor. The court sustained the motion on the seventeenth ground only. Plaintiff appealed from that order and we affirmed the judgment at this term. The defendant excepted to the action of the court in not sustaining his other grounds and has founded this appeal upon such exception.

Under the rulings of the Supreme Court, the St. Louis Court of Appeals, and this court, if we had determined that the trial court was not justified in granting the new trial on the ground given by that court, we could have examined into the other grounds, and if either of them was sufficient to sustain the motion we would affirm the order on plaintiff’s appeal and there would be no necessity tor an appeal by defendant. The new trial having been granted for a cause which we have decided to be proper, there is no foundation left for defendant’s appeal. He has asked a new trial and has obtained it. There is no order or judgment against him upon which to base his appeal, and it is accordingly dismissed.

All concur.  