Russell v. St. Louis & Suburban Railway Co.
| Decision Date | 20 February 1900 |
| Citation | 55 S.W. 454,154 Mo. 428 |
| Parties | RUSSELL v. ST. LOUIS & SUBURBAN RAILWAY COMPANY et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. John A. Talty Judge.
Appeal dismissed.
McKeighan Barclay & Watts, Robert A. Holland, Jr., and George S. Grover for appellants.
(1) It appears that there was "a decree for the plaintiff on the first count of her petition." It also appears that the trial court allowed an appeal from that decree after the usual motions for its correction in that court. Until the contrary appears, it will be presumed that the action of a trial court is correct, throughout the proceedings. Kansas City v. Clark, 68 Mo. 588; Blair v Railroad, 89 Mo. 383; Lewis v. Witten, 112 Mo 318; Ex parte Donaldson, 44 Mo. 149. It should, therefore, be presumed in this case that some disposition was made of the second count which would make an appeal permissible, if this court considers such a disposition of the second count necessary to make the granting of the appeal proper. (2) When a court of equity obtains jurisdiction of a subject -- as, for instance in this case, for the purpose of cancelling a document -- it may hold jurisdiction to do complete justice between the parties. The second count in the plaintiff's petition in this cause, wherein her original claim for damages is sought to be asserted, is merely ancillary to the equity invoked in the first count to cancel the document of release which prevents the plaintiff from asserting her original claim. Baile v. Ins. Co., 73 Mo. 371; Keeton v. Spradling, 13 Mo. 321; McDaniel v. Lee, 37 Mo. 204; Holland v. Anderson, 38 Mo. 55; Morrison v. Herrington, 120 Mo. 665; College v. Bloom, 3 Atk. 262; 1 Pomeroy, Eq. Jurisp. (2 Ed.), sec. 238. (3) A decree in equity is none the less final because it keeps some subsidiary subject for future adjudication. If the substantial equities are determined, the decree is final, so as to permit an appeal, even though the cause is reversed for further judicial action to ascertain the extent of the relief to which plaintiff may be entitled. Reed v. Cline, 9 Gratt. 136; Garrett's Admr. v. Bradford, 28 Gratt. 609; Adams v. Sayre. 76 Ala. 517; Townsend v. Peterson, 12 Colo. 491; Ward v. Whitfield, 64 Miss. 754; Bank v. Morton, 42 N.Y.S. 472; Bredell v. Alexander, 8 Mo.App. 110.
Lyne S. Metcalfe, Jr., and A. R. Taylor for respondent.
Damages for personal injuries.
Plaintiff, a passenger on one of the trains of the St. Louis and Suburban Railway Company, sues the defendants for ten thousand dollars damages for injuries sustained by her on the 4th of October, 1894, in consequence of a collision between the street car operated by the railway company with a steam car operated by its co-defendant the Wabash Railroad Company. The petition is in two counts; the first in equity, asking to have a release of all claim against both defendants, executed by her on the 11th of August, 1894, set aside and vacated, on the ground that it was procured from her by the fraud of the agents of the defendants while sick at the hospital from the effects of her injuries and when she was not competent to contract, and offering to return the $ 185 received by her as the consideration for the contract of release and as compensation in full for her claim to damages; and the second, an action at law, for ten thousand dollars damages for such injuries. The defendants pleaded the release and a general denial. The reply was, substantially, a reiteration of the equity count of the petition. The circuit court tried the equity count separately and entered a decree cancelling the release, and both defendants appealed to this court. The record before us does not show whether the count at law has ever been tried or not, or if so what the result was.
It is patent that upon this statement of the condition of the record that this appeal was prematurely taken, and hence must be dismissed.
Section 2246, Revised Statutes 1889, provided that: "Every person aggrieved by any final judgment or decision of any circuit court in any civil cause," etc., might appeal, etc. This section was amended by the Act of 1891 (Laws 1891, p. 70), so as to allow appeals to be taken from certain orders and judgments entered in the progress of a cause before final judgment. By the Act of April 11, 1895 (Laws 1895, p. 91) the Act of 1891, section 2246, was itself amended, so as to provide that any party to a civil suit might appeal from any of the following orders: 1st, an order granting a new trial or in arrest of judgment; 2d, an order refusing to revoke, modify or change an interlocutory order appointing a receiver; 3d, an order dissolving an injunction; 4th, any interlocutory judgment in partition which determines the rights of the parties; and 5th, any final judgment, or any special order after final judgment.
Except in the cases specified an appeal will not lie until after a final judgment in the cause in the trial court.
Section 2206, Revised Statutes 1889, defines a judgment as follows: "A judgment is the final determination of the right of the parties in the action." So that while section 2246, Revised Statutes 1889, provides for an appeal only from a final judgment, and while the Act of 1895 provides for an appeal from any judgment, they mean the same thing in law, and although the Act of 1895 allows an appeal from any judgment, it specifies the character of judgments comtemplated, enumerating certain interlocutory judgments, and special orders after final judgment, and then covers the cases not already provided for by allowing an appeal after a final judgment.
The statute contemplates only one final judgment in any case. And while section 2040, Revised Statutes 1889, permits a plaintiff to unite in the same petition, by separate counts as many causes of action as he believes he has, whether they "be such as have been heretofore denominated legal or equitable or both," just as section 2049, Revised Statutes 1889, permits a defendant to unite in the same answer as many defenses, stated separately, as he believes he has, whether the same be legal or equitable, still there can be but one final judgment in any case, and if a petition...
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