White v. Reitz

• Decision Date: 03 March 1908
• Citation: 108 S.W. 601,129 Mo. App. 307
• Parties: WHITE v. REITZ et al.
• Court: Missouri Court of Appeals

108 S.W. 601

129 Mo. App. 307

WHITE v. REITZ et al.

St. Louis Court of Appeals. Missouri.

March 3, 1908.

1. NEW TRIAL—REDUCTION OF EXCESS OF RECOVERY—VACATION OF JUDGMENT.

Where a judgment for plaintiff in a certain amount was entered, and the court overruled defendant's motion for new trial on condition that plaintiff remit part of the judgment, which was done, the original judgment was nullified, and a new entry of judgment for the proper amount should have been made.

2. APPEAL—DECISIONS REVIEWABLE—FINAL JUDGMENT—DISMISSAL OF APPEAL.

Where, after judgment in his favor was entered, plaintiff remitted a part of the amount as a condition for the denial of defendant's motion for new trial, but no new entry of judgment was made, an appeal from the original judgment will not be dismissed, but the appellate court will examine the record, and, if no reversible error intervened, enter the proper judgment, or remand with directions to do so.

3. EVIDENCE — DOCUMENTARY EVIDENCE — FOREIGN LAWS.

Under Rev. St. 1899, § 3089 [Ann. St. 1906, p. 1771], providing that printed volumes, purporting to contain the laws of a sister state or territory shall be admitted as prima facie evidence of the statutes of such state or territory, Shannon's Annotated Code of Tennessee was admissible in evidence to prove the statutes of Tennessee.

4. FRAUD — FRAUDULENT REPRESENTATIONS— MATTERS OF FACT.

A statement made by an agent to a prospective purchaser of land that he had once owned the land himself and knew the title to be good was an assertion of positive knowledge, and, if untrue, was legal fraud, notwithstanding the agent acted in good faith, and believed that the title was good.

5. TRIAL—INSTRUCTIONS—PROVINCE OF COURT AND JURY—INTERPRETATION OF STATUTES.

In an action for fraud in the sale by defendant to plaintiff of land situated in another state, plaintiff claimed that defendant's title was void under the statutes of such other state. Held that, while it would have been proper to submit to the jury whether the sections of the statutes read in evidence were the laws of such state, it was not proper to leave it to the jury to interpret those sections, and apply them to the facts of the case.

6. FRAUD — FRAUDULENT REPRESENTATIONS— INSTRUCTIONS.

Where plaintiff claimed that defendant, in selling land to plaintiff, fraudulently represented that the owner of the land had a good title, an instruction authorizing a recovery if the jury found that the title was not good, but that defendant represented it to be so, was erroneous, as ignoring the question of fraud in making the representations.

Appeal from Circuit Court, Phelps County; L. B. Woodside, Judge.

Action by J. W. White against Victor William Reitz and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Watson & Holmes and J. B. Harrison, for appellants. S. N. Lorts and L. Crites, for respondent.

BLAND, P. J.

The action is for fraud and deceit in the exchange of land. Plaintiff's damages are laid at $5,000 in the petition. The jury found the issues for plaintiff, and assessed his damages at $1,333.90, and judgment was rendered and entered of record for this amount. A timely motion for new trial was filed and, being taken up by the court, "the court announced that the verdict was too great an amount, and unless plaintiff would remit the sum of four hundred and thirty-three (433.09) dollars and nine cents the motion for a new trial would be sustained, but if such remittitur was made it would be overruled; whereupon the plaintiff in open court remitted the said amount of four hundred and thirty-three dollars and nine cents, leaving the amount of the verdict stand at seven hundred ($700) dollars and thereupon the court overruled said motion for a new trial; to which action of the court in overruling said motion for a new trial, the defendants in open court, by counsel, objected and excepted at the time." Whereupon defendants took and perfected their appeal to this court. No new judgment was entered after plaintiff remitted the sum of $433.09 of the original judgment, and the appeal is from the judgment for $1,333.90. This judgment was nullified, and, in effect, expunged from the record by the remittitur, and a new entry of the judgment for the proper amount should have been made. Schilling v. Speck, 26 Mo. 489; Tilford v. Ramsey, 43 Mo. 410; Haynes v. Town of Trenton, 108 Mo., loc. cit. 134, 18 S. W. 1003; Dawson v. Waldheim, 81 Mo. App., loc cit. 638, Id., 89 Mo. App. 245. Technically, there was no final judgment in the cause from which an appeal could be taken. But it seems to us it would be judicial nonsense to dismiss the appeal for the reason the circuit court omitted to enter a proper judgment after the remittitur was made. A dismissal would only have the effect of giving the trial court an opportunity to enter a proper judgment, as should have been done when the remittitur was entered, and thus put defendants to the trouble and additional cost of taking a second appeal. What we should do is, as was done in Schilling v. Speck, and Tilford v. Ramsey, supra, look into the record, and, if no reversible error intervened at the trial, enter here the judgment the circuit court should have entered, or remand the cause, with directions to the circuit court to enter a proper judgment.

We will address ourselves to the case. The petition, in substance, alleges that on the solicitation of defendant Reitz plaintiff purchased of defendant Kaiser 640 acres of land in Fentress county, in the state of Tennessee, of the value of $5,000, and paid therefor in money and property $3,000; that Reitz represented to plaintiff that he was well acquainted with the land and it was well worth $5,000; that Mrs. Kaiser had a good title thereto, and, relying on these representations and believing them to be true, plaintiff bought the land; that after making the purchase plaintiff investigated the title of Mrs. Kaiser to the Tennessee land and ascertained she did not have and never had had any title thereto. The answer was a general denial. It appears from the evidence that some time prior to the year 1900, defendant Reitz procured a deed to the 640-acre tract of land in Tennessee, and also an abstract showing a paper title in himself; that he conveyed the land to defendant Kaiser, who is his sister, and afterwards Reitz, acting for Mrs. Kaiser, traded the land to plaintiff for a farm of 200 acres near the town of St. James, in Phelps county, Mo. This farm was incumbered by a mortgage...