Brown Motor Sales Co. v. Daugherty

• Decision Date: 29 June 1937
• Citation: 107 S.W.2d 179,232 Mo.App. 951
• Parties: BROWN MOTOR SALES COMPANY, A CORPORATION, RESPONDENT, v. C. DAUGHERTY, APPELLANT
• Court: Missouri Court of Appeals

107 S.W.2d 179

232 Mo.App. 951

BROWN MOTOR SALES COMPANY, A CORPORATION, RESPONDENT, v. C. DAUGHERTY, APPELLANT

Court of Appeals of Missouri, St. Louis

June 29, 1937

Appeal from Cape Girardeau Court of Common Pleas.--Hon. L. L Bowman, Judge.

AFFIRMED.

Action affirmed.

J Grant Frye and H. Howard Frye for appellant.

(1) Elsea v. Base, 77 S.W.2d 164; White v Grace, 192 Mo.App. 610, 184 S.W. 947; Turner v Simon, 31 Mo.App. 582; Johnson v. Fischer, 56 Mo.App. 552; Cf. State ex rel. Knapp v. Cowan, 88 S.W.2d 424. (2) Eisenberg v. Nelson, 247 S.W. 244; Proctor v. Home Investment Co., 221 Mo.App. 577, 284 S.W. 156; Fitzwilliams v. Northwestern Trust Co., 10 S.W.2d 334. (3) McCafferty v. Clay, 18 S.W.2d 569; Calmon v. Cox, 296 S.W. 845; Poplin v. Brown, 200 Mo.App. 255, 205 S.W. 411. (4) Secs. 849, 2218, 2286, 2291, R. S. Mo. 1929.

Frank A. Lowry for respondent.

(1) Only final judgments are appealable. Thurman v. Smith, 39 S.W.2d 336; Cox v. Schaab Stove Co., 58 S.W.2d 700; Chitwood v. Jones, 45 S.W.2d 893. (2) A judgment which does not settle the rights of the parties or determine the merits of the controversy is not appealable. Boden v. Johnson, 23 S.W.2d 186. (3) A final judgment decides all issues. Ray v. Christian Brothers College, 93 S.W.2d 1030. (4) One cannot acquiesce in or accept an order and at the same time appeal therefrom. Winsor v. Schaeffer, 34 S.W.2d 989. (5) Rulings on motions are not appealable in the absence of statute. Meyers v. Faris, 87 S.W.2d 455. (6) An order sustaining a motion to strike an answer and a later ruling refusing to set aside such order is not appealable as a final judgment. Concrete Engineering Co. v. Plaza Royal Amusement Co., 24 S.W.2d 1031.

HOSTETTER, P. J. Becker and McCullen, JJ., concur.

OPINION

HOSTETTER, P. J.--

This case originated in a Justice of the Peace Court in Cape Girardeau County, on April 27, 1935.

The suit was one in replevin for possession of a certain described Plymouth sedan alleged to be of the value of $ 25 and judgment was asked for its possession, together with $ 64.20 damages.

The statement and affidavit filed by plaintiff was patterned after the form prescribed by Section 2550, Revised Statutes of Missouri, 1929 (Mo. Stat. Ann., sec. 2550, p. 2546) and was made on a printed blank with certain parts written in with pen and ink, with the ludicrous result that the plaintiff, an Illinois corporation, was referred to as being of the masculine gender by the use of the words "he," and "his," in referring to plaintiff and to plaintiff's alleged ownership of the Plymouth sedan.

The affidavit, required by Section 2549, Revised Statutes of Missouri, 1929, to verify the statement, was unsigned.

The justice issued an order of delivery and summons and delivered it to the constable.

On May 8, 1935, defendant appeared and filed an answer and counterclaim, the answer being a general denial of the allegations in the plaintiff's petition and alleging ownership of the Plymouth sedan and demanding a return thereof. The counterclaim contained allegations that on March 18, 1935, defendant was in possession of a certain truck and trailer which was encumbered by a chattel mortgage held by the Illinois Bond and Investment Company and that on said day plaintiff acquired possession of said truck and trailer by wanton, unlawful, malicious and oppressive disregard of defendant's rights and unlawfully converted said truck and trailer to its own use and disposed of same to defendant's damage in the sum of $ 250, for which amount defendant prayed judgment against plaintiff.

Upon a trial before the justice and a jury, the latter returned a verdict in favor of the plaintiff on its petition for the Plymouth sedan, but allowed no damages, and in favor of defendant on his counterclaim fixing the amount of his recovery at $ 250, and the justice rendered a judgment in accord with the verdict of the jury, whereupon plaintiff in due time perfected its appeal to the Cape Girardeau Court of Common Pleas.

After the cause reached said common pleas court the plaintiff, on July 23, 1935, filed a demurrer to defendant's said counterclaim on the ground that it failed to state facts sufficient to constitute a cause of action against plaintiff, which was, after argument by the respective attorneys, sustained by the court on August 2, 1935, and said counterclaim was dismissed, the record entry closing as follows:

". . . . It is therefore ordered, adjudged, and decreed by the court that defendant take nothing by his Counterclaim and that said counterclaim be dismissed."

Thereupon on August 9, 1935, defendant filed a motion to strike out the plaintiff's petition on the following grounds, viz.:

"1st, the petition fails to state any facts sufficient to confer jurisdiction in rem in the Justice Court or any derivative jurisdiction in this court.

"2nd, this court is without jurisdiction in rem or any matter pertaining to plaintiff's petition.

"3rd, the petition fails to state facts sufficient to constitute a cause of action.

"4th, the petition is so wholly insufficient as to preclude amendment."

Thereafter on August 30, 1935, the court sustained said motion to strike, making the following record entry in respect thereto, viz.:

"And now on this day come the parties herein by their respective attorneys, and this cause coming on to be heard upon the motion of defendant to strike plaintiff's petition herein, and the court being fully advised in the premises, doth sustain said motion and orders said cause dismissed, to which action of the court, plaintiff objects and excepts at the time; it is therefore considered, ordered and adjudged by the court that plaintiff take nothing by his writ, and that defendant go thereof without day and recover of and from the plaintiff his costs and charges in his behalf expended, and that execution issue therefor."

Thereafter on August 30, 1935, defendant filed a motion to set aside the order of court sustaining the demurrer to his counterclaim on the ground that "said order is erroneous on the face of the record in view of the court's holding that the petition was wholly a nullity."

Thereafter on September 27, 1935, the court, by an order of record, overruled defendant's said motion to set aside the order of court previously made sustaining plaintiff's demurrer to defendant's counterclaim.

Thereafter, on November 7, 1935, defendant offered to file his amended answer and counterclaim, the counterclaim being practically in the same language as that which the court had dismissed on August 2, 1935, following the suspension of the demurrer of plaintiff filed thereto.

The court, on November 7, 1935, refused to allow defendant to file such amended answer and counterclaim, giving reasons therefor by an order of record, which reasons may be summarized as follows:

"There is at this time no cause of action pending in which a counterclaim can be filed because of the original replevin suit in which this amended counterclaim is sought to be filed--heretofore been dismissed by this court and an appeal taken from such dismissal--(and)--the original counterclaim which defendant seeks to amend has heretofore been dismissed by order of the court--(and)--the matters set out in said amended claim are not such to be proper subject of a counterclaim to the original replevin suit because the amended counterclaim does not arise out of the same transaction, nor is it connected with the same subject matter. The amended counterclaim--contains in substance the same matter set out in the original counterclaim, which has heretofore been dismissed--because it showed--that the matter set forth therein was not proper subject of counterclaim. The justice of the peace had no jurisdiction--and this court could not have derivative jurisdiction, and jurisdiction of counterclaim cannot be acquired by reason of the fact that it is filed in an original cause which was a nullity from beginning--and, defendant refusing to plead further, it is adjudged and decreed by the court that defendant take nothing by reason of his counterclaim."

Defendant thereupon duly perfected his appeal to this court.

It is the contention of counsel for the appealing defendant that the petition, or statement in replevin, filed before the justice, was a nullity in that, by reason of the lack of an affidavit, it conferred no jurisdiction on the justice and that it was so fatally defective that it could not be amended and that his alleged counterclaim was merely a suit which could be heard in the circuit court notwithstanding it was filed as a counterclaim in the justice of the peace court.

It is the contention of counsel for plaintiff (respondent) that the appeal taken by the defendant from the common pleas court was premature and not from a final judgment, and, therefore, that the appeal should be dismissed.

We have reached the conclusion that the contention of counsel for both sides is untenable. Section 777, Revised Statutes of Missouri, 1929 (Mo. Stat. Ann., sec. 777, p. 1022) of the general code, reads as follows:

"The counterclaim mentioned in the last section must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action: First, a cause of action arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff's claim, or connected with the subject of the action; second, in an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action. The defendant may set forth by answer as many defenses and counterclaims as he may have, whether they be such as have been...