State ex rel. Holden v. Gill

• Citation: 84 Mo. 248
• Parties: THE STATE ex rel. HOLDEN et al. v. GILL, Judge.
• Decision Date: 31 October 1884
• Court: Missouri Supreme Court

84 Mo. 248

THE STATE ex rel. HOLDEN et al.

v.GILL, Judge.

Supreme Court of Missouri.

October Term, 1884.

Prohibition.

WRIT DENIED.

J. Brumback, L. C. Slavens, D. B. Holmes and G. Lathrop, for relators.

(1) The judgments against Huling and Swope were several and separate and this court so held and reversed said several and separate judgments. As to all the other parties the judgments of the circuit court were unappealed from and remain unreversed. McKee v. Jones, 17 Mo. 184; Coles v. Trustees, etc., 10 Wend. 659. (2) The matters passed upon by the Supreme Court are res judicata so far as this case is concerned and the circuit court must govern itself accordingly. The Metropolitan Bank v. Taylor, 62 Mo. 338; Overall v. Ellis, 38 Mo. 209; Roberts v. Cooper, 20 Howard 467; Oakley v. Aspinwall, 13 N. Y. 500; Carbell v. Teluff, 12 Grattan (Va.) 226. Tyler v. McGuire, 17 Wall. 253; Furniss v. Ferguson, 34 N. Y. 485. (3) It is no part of relator's case to show how the trial court is to work out a final adjudication under the decision of the Supreme Court. (4) The remedy is by the writ of prohibition. “The office of this writ is to restrain subordinate courts and inferior judicial tribunals of every kind from exceeding their jurisdiction.” Sharswood's Blackstone, vol. iii, p. 111; Wait's Ac. and Def. vol. v, p. 248; Thomas v. Mead, 36 Mo. 232; Howard v. Pierce, 38 Mo., 296; Quimbo Appo v. People, 20 N. Y. 531; Michaud v. Judge, 20 La. Ann. 239; Worthington v. Jeffries, L. R. 10 C. P. 377, 384.

D. S. Twitchell for respondent.

(1) The reversal as to the finding and assessment of damages or benefits as to any of the parties to the record operates in law ex necessitate a reversal of the entire proceedings and a trial de novo. Matter of P. P. & C. I. R. R., 67 N. Y. 371. (2) A judgment against several defendants is an entirety; it is good as to all or it is bad as to all. Covenant Mutual Life Ins. Co. v. Clover, 36 Mo. 392; Rush v. Rush, 19 Mo. 441; Pomeroy v. Betts, 31 Mo. 419; St. Joseph Fire and Marine Ins. Co. v. Hauck, 71 Mo. 465. On the reversal of a judgment for the rejection of competent evidence, the cause should be remanded for trial denovo. Bliss v. Winston, 1 Ala. 344. Although an error of law be prejudicial to only one of two defendants appealing the appellate court must reverse the judgment as to both. Huckabee v. Nelson, 54 Ala. 12. In all suits in the nature of actions of law, the judgment must be good as to all or bad as to all, and all parties, plaintiff or defendant in the judgment, aggrieved thereby, must join in prosecuting their appeal or writ of error. Whittelsy's Mo. Practice, sec. 403; Parston's Administrator v. Humber et al., 39 Mo. 521. And, therefore, if the right of appeal from the verdict of the jury in the circuit court, and the judgment of the court thereon existed at all in favor of Swope and the Hulings, no appeal was taken according to law in this case.

HENRY, C. J.

The City of Kansas instituted proceedings to condemn, for street purposes, a parcel of land in Kansas City, in which Elma J. Hill, Geo. D. Huling, Thomas H. Swope and others were parties, some as owners of the strip of land which it was proposed to condemn, others of lots to be assessed for benefits. After a verdict and other proper steps, before the mayor, the whole proceeding was taken by appeal to the circuit court of Jackson county, where there was another trial and a verdict in which separate assessments were made and a judgment rendered according to section three of the charter. The damages assessed aggregated $28,000.06, and one dollar was assessed against the city for benefit, and the balance $27,999.06, against ninety-three separate lots, or parcels of land owned by individuals. One owned by Geo. D. Huling was assessed $3,025.46. Six owned by Thomas Swope, in the aggregate $8,000, and two owned by John W. Reed $9,400, and two owned by J. Brumbach two hundred and eighty dollars. The assessment against the ninety-three lots varied from ten cents to $4,800. Huling and Swope each appealed to this court, which reversed the judgment and remanded the cause, and the question now for determination is, whether there shall be a re-trial, only as to the assessments against Huling and Swope, or the trial shall again be de novo?

Section three, article seven of the charter (Laws 1875, p. 245) provides, that: “The jury shall first ascertain the actual damage done to each person, or corporation, in consequence of the taking of their property for such purposes, without reference to the proposed improvement, as the just compensation to be made therefor; and second, to pay such compensation, assess against the city the amount of benefit to the city and public generally, inclusive of benefit to any property of the city, and against the several lots, * * * deemed benefited, as determined according to the last section, * * * each lot to be assessed with an amount bearing the same ratio to such balance as the benefit to each lot bears to the whole benefit to all the private property assessed.”

Section six provides for an appeal by the city, or any party aggrieved to the circuit court of Jackson county, which...