Hewitt v. Steele

• Citation: 38 S.W. 82,136 Mo. 327
• Parties: Hewitt v. Steele, Appellant
• Decision Date: 15 December 1896
• Court: Missouri Supreme Court

38 S.W. 82

136 Mo. 327

Hewitt v. Steele, Appellant

Supreme Court of Missouri

December 15, 1896

Appeal from Callaway Circuit Court. -- Hon. John A. Hockaday, Judge.

Reversed.

J. G Trimble and Elijah Robinson for appellant.

(1) The court should have made an order staying the prosecution of this suit until the costs of the first suit had been paid. This is a rule of practice well established, and is founded upon the plain principles of justice. Buckels v Railroad, 47 F. 424; Ripley v. Benedict, 4 Cow 19; Perkins v. Hinman, 19 Johns. 237; Taylor v. Vandivert, 9 Wend. 449; Kentish v. Tatham, 6 Hill, 372; Jackson v. Carpenter, 3 Cow. 22; Ex parte Stone, 3 Cow. 380; Fleming v. Ins. Co., 4 Pa. St. 475; Felt v. Amedon, 49 Wis. 66; Gerrish v. Pratt, 6 Minn. 53; Henderson v. Griffin, 5 Pet. 151. (2) The action was barred by the five years' statute of limitations. (3) The only charge in the petition was negligence on the part of the defendant in the sale of the stock in question. There was no pretense that he acted dishonestly or that he profited in any way by the transaction. The evidence did not support the charge of negligence and under the circumstances it was clearly the duty of the court to direct a verdict for the defendant. Morgan v. Durfee, 69 Mo. 476; Fitzgerald v. Barker, 96 Mo. 661; Long v. Long, 107 Mo. 338; Craig v. Kelly, 49 Mo.App. 317.

Chas. B. Stark and Bailey & Tincher for respondent.

(1) The court committed no error in refusing to stay further proceedings in this case until the costs of the former suit should be paid. "The power of staying proceedings until the costs of former suits, or appeals, are paid, is equitable in its nature, and intended to prevent the vexatious multiplications of suits." McIntosh v. Hoben, 11 Wis. 400; Ex parte Stone, 3 Cow. 380; Jackson v. Schauber, 4 Wend. 216; Smith v. Barvardiston, 2 Wm. Black. R. 904. (2) The appellant's demurrer to the respondent's evidence was properly overruled because there was evidence to go to the jury on the question whether the appellant had exercised ordinary care and prudence and the demurrer admitted the truth of all facts testified to by the witnesses and every reasonable inference that the jury might have drawn therefrom. Wilson v. Board, 63 Mo. 137; Buesching v. St. Louis Gaslight Co., 73 Mo. 219; Jackson v. German Ins. Co., 27 Mo.App. 62; Walton v. Railroad, 32 Mo.App. 634. (3) If the court erred in refusing to nonsuit the respondent at the close of her evidence the appellant waived the error by introducing evidence on his behalf and the case stands now for review on the whole case. Bowen v. Railroad, 95 Mo. 268; Bowen v. Railroad, 95 Mo. 286; Goodger v. Finn, 10 Mo.App. 226; Cadmes v. St. L., etc., Co., 15 Mo.App. 86; McCarthy v. Railroad, 15 Mo.App. 385. (4) Where there is any substantial evidence to support a verdict in a case at law this court will not disturb it because it appears to be against the weight of the evidence. Rea v. Ferguson, 72 Mo. 225; Myer v. McCabe, 73 Mo. 236; State v. Hert, 89 Mo. 590; Grove v. City of Kansas, 75 Mo. 672. (5) This suit having been instituted within one year after the rendition of the judgment of affirmance in this court of the judgment of nonsuit in the circuit court of the former suit between the same parties is not barred by the statute of limitation. R. S. 1889, sec. 6784; Chouteau v. Rowse, 90 Mo. 191; Wood v. Nortman, 85 Mo. 298; Briant v. Fudge, 63 Mo. 489; Shaw v. Pershing, 57 Mo. 417; Coffin v. Cattle, 16 Pick. 383; Napier v. Foster, 80 Ala. 379; Premo v. Lee, 56 Vt. 60; Succession of Saunders, 37 La. Ann. 769; Bouv. Law Dic. verb. Nonsuit; 3 Black. Com. 296, 316. (6) The judgment is for the right party and should not be disturbed. R. S. 1889, sec. 2303; Gordon v. Eans, 97 Mo. 587; Valle v. Picton, 91 Mo. 207; Thompson v. Foerstel, 10 Mo.App. 290; Muench v. Valley Nat. Bank, 11 Mo.App. 144.

Brace, C. J. Gantt, J., does not concur in the third paragraph.

OPINION

In Banc.

Barce C. J.

Suit on the cause of action set out in plaintiff's petition was originally commenced in the circuit court of Audrain county, on the fourteenth of May, 1889, taken by change of venue to Pike county circuit court, where it was tried at the September term, 1890, of that court, resulting in a verdict in favor of the plaintiff for $ 6,250 which on motion of defendant was set aside and a new trial granted, although the plaintiff offered to remit all of said verdict in excess of $ 4,000.

The cause having been re-docketed and coming on for trial at the March term, 1891, of said court (on the fifteenth day of May, 1891), and plaintiff refusing to further prosecute her action in said court, the court that day ordered a nonsuit, and entered judgment for the defendant and upon the court refusing to set aside such judgment, the plaintiff perfected her appeal from the order of the trial court granting defendant a new trial, dismissing her petition and rendering judgment against her for costs. On the seventh of December, 1893, the judgment of the circuit court was, on this appeal, in all points affirmed by the supreme court. Hewitt v. Steele, 118 Mo. 463, 24 S.W. 440.

Afterward, on the twenty-ninth of December, 1893, this suit was instituted in the Audrain circuit court, and, after issue joined, was taken thence by change of venue to the Callaway circuit court, wherein the defendant filed a motion setting forth the history of the former suit, alleging that a large part of the costs of the former suit adjudged against plaintiff remained unpaid, that plaintiff had no meritorious cause of action, that the institution of the second suit was vexatious; prayed the court to stay further prosecution thereof, and offered testimony in support of his motion, which offer was by the court rejected, the motion overruled, and defendant excepted.

The cause thereafter coming on for trial, was heard and submitted to the jury on the evidence under instructions from the court, and a verdict returned in favor of the plaintiff for the sum of $ 5,500. Thereupon the defendant filed his motion for new trial, pending which the plaintiff entered a remittitur of $ 1,100, whereupon the court overruled the motion for a new trial, and entered judgment in favor of the plaintiff for the sum of $ 4,400, from which the defendant appeals.

The cause of action stated in the petition was for damages for the alleged negligence of defendant in selling one hundred and seventy-five shares of the capital stock of the Mound Street Warehouse Company of the city of St. Louis, of which she was the owner, and which the defendant held as collateral security for an indebtedness due from her to him, for an inadequate price. The answer was in effect a general denial, a plea of res adjudicata and of the statute of limitations.

On the trial the defendant interposed a demurrer at the close of plaintiff's evidence, and again at the close of all the evidence, which was overruled.

A full, fair, and clear statement of the salient facts of the case as they wore developed in the evidence on the trial may be found in the opinion of Burgess, J., in the former case, 118 Mo. p. 466, et seq., and need not be reiterated here.

The errors complained of are the refusal of the court to stay the proceedings in this case until the costs in the former suit were paid; in not sustaining the plea of limitation; in overruling the demurrer to the evidence; in the admission of illegal evidence for the plaintiff, and in rejecting legal evidence for the defendant; and in giving the first and second instructions for the plaintiff.

1. It has been said that "Every court of justice has power to control its proceedings so as to prevent oppression between its suitors. * * * Upon this principle it is, that when the merits of a cause have been heard, and the plaintiff is either nonsuited or a verdict passes against him, he will not be permitted to harass the defendant with a second suit on the same ground, until the costs of the first are discharged. This rule is equally applicable to ejectments and all other causes, and it is adopted both by the King's Bench and Common Pleas." Newton v. Bewley, 1 P. A. Browne (Pa.), 38. See, also, Melchart v. Halsey, 2 Blackstone 741.

In the last case Gould, J., said that, "the true ground of the present rule is, that the second action is vexatious."

While this question has never been considered by this court so far as we are advised, in the recent case of Jones v Barnard, 63 Mo.App. 501, the rule was directly passed upon and sustained by the Kansas City court of appeals, as it has been in numerous cases in other states, some of which are cited in the brief of counsel, and to which many others might be added. 5 Ency. of Pleading & Practice, p....