Arcadia Timber Company v. Evans

• Decision Date: 28 July 1924
• Docket Number: 24040
• Citation: 264 S.W. 810,304 Mo. 674
• Parties: ARCADIA TIMBER COMPANY et al., Appellants, v. JOE EVANS
• Court: Missouri Supreme Court

264 S.W. 810

304 Mo. 674

ARCADIA TIMBER COMPANY et al., Appellants, v. JOE EVANS

No. 24040

Supreme Court of Missouri

July 28, 1924

Appeal from Dunklin Circuit Court; Hon. W. S. C. Walker Judge.

Dismissed.

Hugh B. Pankey for appellants.

Hall & Billings for respondent.

Higbee C. Railey, C., not sitting.

OPINION

HIGBEE

This is an action to determine title to lot 2 of the southeast quarter of Section 13, Township 18 North, of Range 9 East, in Dunklin County. The answer pleads title by adverse possession to an irregularly shaped portion of the tract sued for, described by metes and bounds, and containing fourteen acres more or less. The cause was tried to a jury, who returned the following verdict: "We, the jury, find the issues joined in the above entitled cause for the defendant, to-wit: That the defendant is the owner of the premises described in the petition and in the evidence, by adverse possession." The plaintiff filed motions for new trial and in arrest, which were overruled and an appeal was granted to this court.

It appears from the short transcript, as well as from the printed abstract of the record, that judgment was not entered upon the verdict. Plaintiffs took an appeal from an order overruling their motion for a new trial. The statute authorizes an appeal from a final judgment, or from an order granting a new trial, but not from an order refusing a new trial. [Sec. 1469, R. S. 1919.] The right of appeal is purely statutory; no right of appeal existed at common law. [Millar v. St. Louis Transit Co., 216 Mo. 99, 103, 115 S.W. 521; Doe Run Lead Co. v. Maynard, 283 Mo. 646, 670, 223 S.W. 600, 606; Bonfils v. Martin's Food Service Co., 253 S.W. 982.] The general rule is that a verdict without a judgment entered upon it is of no validity. [23 Cyc. 1123.] "Matters in litigation between parties do not become adjudicated until the judgment is rendered." [Gann v. Dearborn Mfg. Co., 129 Mo.App. 425, 429, 107 S.W. 15.] The judgment must appear in the record or transcript filed in the appellate court. [Sec. 1479, R. S. 1919.] The appeal is unauthorized and must be dismissed. The case is still pending in the circuit court. [Lowe v. Frede, 151 Mo.App. 569, 572, 132 S.W. 274; Rock Island Imp. Co. v. Marr, 168 Mo. 252, 257, 67 S.W. 586; Baker v. St. Louis, 189 Mo. 375, 378, 88 S.W. 74; Cramer v. Barmon, 193 Mo. 327, 334, 91 S.W. 1038; Karabacek v. Richards, 249 Mo. 608, 618, 155 S.W. 777; Koeln v. Gould, 260 Mo. 499, 500, 168 S.W. 1140.]

There is a line of cases, however (State v. Holland, 160 Mo. 667, 61 S.W. 620, and State v. Hewitt, 246 S.W. 546 and cases cited), holding if the trial court fails to enter judgment on the verdict the approved practice is to remand the case with directions to enter a judgment on the verdict as rendered. Whatever may be said in favor of that practice, the learned writers of the opinions in those cases did not have under consideration a case like the present one. The verdicts in those cases were regular and responsive to the issues. The verdict in this case is a legal abortion; the jury found that the defendant was the owner of the entire tract described in the petition, when the issue submitted was as to the ownership of only a fraction thereof. The verdict should have been rejected. "A verdict is the determination of the jury upon the facts in issue in a cause." "Whatever they find beyond this is impertinent and immaterial and to be rejected." [40 Cyc. 189 and note 46; 2 Thompson on Trials, section 2639.]

The order of submission is set aside, and the appeal is dismissed. Railey, C., not sitting.

PER CURIAM: -- The foregoing opinion of Higbee, C., is hereby adopted as the opinion of the court. All of the judges concur, except White, J., who dissents in a separate opinion.

DISSENT BY: WHITE

WHITE J. (dissenting).

I dissent from the statement of law announced by Higbee, C., and think the case should be differently disposed of.

Here we have no final judgment from which an appeal would lie. The appeal was, therefore, premature. The cases which Judge Higbee distinguishes, State v. Hewitt, 256 S.W. 546; State v. Holland, 160 Mo. l. c. 667, and others, were criminal cases. Since no final judgment had been rendered, this court in each case set aside the submission and remanded the case, directing the trial court to enter judgment in accordance with the verdict. The State being a party to a criminal case, and this court having a superintending control over circuit courts, assumed jurisdiction to order the trial court to perform its duty and sentence the convicted defendant. It was assumed that the premature appeal in such case was sufficient to bring to this court notice of the failure of that duty by the trial court without any direct application to this court for that purpose.

Judge Higbee, in his opinion dismissing the appeal, asserts there is no appeal here and the case is still pending in the trial court. If that doctrine is carried to its logical conclusion there is nothing to dismiss. We cannot dismiss an appeal unless there is an appeal. We could only strike from the docket the alleged appeal. The case is not...