Agan v. Quick

• Decision Date: 29 November 1920
• Parties: AGAN v. QUICK et al.
• Court: Missouri Court of Appeals

226 S.W. 601

AGAN v. QUICK et al.

Kansas City Court of Appeals. Missouri.

November 29, 1920.

[PR] Appeal from Circuit Court, Henry County; C. A. Calvird, Judge.

"Not to be officially published."

Action by John Agan against Maurice Quick and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

John A. Gilbreath, of Clinton, and M. D. Aber, of Warrensburg, for appellants.

Nick M. Bradley, of Warrensburg, for respondent.

ELLISON, P. J.

Plaintiff and defendants occupied adjoining farms, Inclosed by an outside fence around both, with a defective cross-fence between them. Plaintiff's action is based on the charge that defendants turned their cattle in the pasture on their own side from whence they escaped through the defective fence to plaintiff's cornfield and destroyed 16 acres of growing corn, of the value of $400. The trial court gave a peremptory instruction to find for plaintiff against one of the defendants, and submitted the amount of damages to the jury, and a verdict was returned against that defendant for $250, for which judgment was rendered against

No disposition was made of the case as against the other defendant, and It is urged that for this the judgment must be reversed and the cause remanded. We are of the opinion the point is well made. There are two considerations to be regarded in coming to a correct conclusion on the question. It N a rule well established in this state, that a judgment must be responsive to the pleadings and dispose of the issues in a case. We quote what we said in Thresher Co. v. Speak, 167 Mo. App. 470, 474, 151 S. W. 235, viz.:

"`That judgments and decrees must be responsive to the pleadings in this state is no longer an open question' In Schneider v. Patton, 175 Mo. 684, 723, it is said that: `No principle is better settled than that, unless a judgment is responsive to the issues presented in the pleadings, it is erroneous.' And in State v. Modlin, 197 Mo. 376, 379, that in considering the sufficiency of a verdict `it must be borne in mind that it is well-settled law in Missouri that if the verdict, which is a part of the record, is not responsive to the issue, or is uncertain or indefinite, it is open for review on appeal or writ of error as a part of the record proper.' In State v. Rowe, 142 Mo. 439, 442, it is held that the verdict must be so responsive to the issues as to afford the party protection against the same claim in another action. It is said in 1 Graham & Waterman on New Trials, 140, that: `If the jury...