Connoley v. Beyer Crushed Rock Co.

• Decision Date: 11 November 1946
• Docket Number: 39627
• Parties: Ida M. Connoley, Appellant, v. Beyer Crushed Rock Company, a Corporation, and Louis Marino
• Court: Missouri Supreme Court

197 S.W.2d 653

355 Mo. 684

Ida M. Connoley, Appellant, v. Beyer Crushed Rock Company, a Corporation, and Louis Marino

No. 39627

Supreme Court of Missouri

November 11, 1946

Appeal from Jackson Circuit Court; Hon. John R. James Judge.

Reversed and remanded (with directions).

Smith F. Brandom and Thomas C. Swanson for appellant.

(1) The trial court erred in (1) overruling appellant's motion for new trial as to the entire case, i.e., to both Counts I and II, and in (2) sustaining respondents' motion for new trial as to Count II only. Counts I and II arose from the same transaction or sequence of events, necessitating a retrial of all issues in the entire case. Hall v Martindale, 138 S.W.2d 657; Rosen v. Kroger, etc Co., 5 S.W.2d 649; Shaffer v. Chicago, etc., Co., 254 S.W. 257; Jackson v. Farmers & Comm., 181 S.W.2d 211; Gasoline Products Co. v. Champlin Ref. Co., 283 U.S. 494, 51 S.Ct. 514; Payne v. Bertram, 27 S.W.2d 28. (2) Respondents have conceded that the reliefs sought by appellant's petition arose out of the "same transaction." Secs. 847.61 (9) and 847.37, Mo. R.S.A. (3) The verdict of the jury should have been set aside in its entirety because it is arbitrary, manifestly and clearly wrong, ignored the court's instructions and resulted from misconduct. Choquette v. Southern, etc., Co., 152 Mo. 257, 53 S.W. 897; Shohoney v. Quincy, etc., Co., 122 S.W. 1025; Burrell Collins, etc., Co. v. Hines, 230 S.W. 371; Barber v. McDonald, 245 S.W. 357; Busse v. White, 287 S.W. 600. (4) The court erred in giving respondents' Instruction C, over appellant's objections; such instruction improperly declares the law and is in direct conflict with Instructions No. 1 and No. 1-A. Petrelle v. West Virginia, etc., Co., 104 S.E. 103; Sligo, etc., Co. v. Tie Co., 134 S.W. 585. (5) The verdict as to Count I is against the weight of the evidence; there is no evidence upon which to base the amount of damages found by the jury. Sligo, etc., Co. v. Tie Co., 134 S.W. 585.

George T. Aughinbaugh, Moore & Aughinbaugh, Alvin C. Trippe, Hale Houts and Hogsett, Trippe, Depping & Houts for respondents.

(1) The court did not err in sustaining defendants' motions for new trial on Count II. The verdict on Count II was excessive and contrary to the evidence and the instructions. Devine v. St. Louis, 257 Mo. 470, 165 S.W. 1014; King v. Kansas City Life Ins. Co., 350 Mo. 75, 164 S.W.2d 458; Benson v. Chicago & Alton Railroad Co., 78 Mo. 504. (2) The granting to defendants of a new trial on Count II does not entitle plaintiff to a new trial on Count I. Cramer v. Barmon, 193 Mo. 327, 334, 91 S.W. 1038; Sec. 115, New Code; Laws 1943, p. 388; Sec. 1125, R.S. 1939; Denny v. Guyton, 327 Mo. 1030, 40 S.W.2d 562; Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559; Borgstede v. Grocery Co., 116 S.W.2d 179; Zarisky v. Kansas City Public Serv. Co., 186 S.W.2d 854; Whiteoak Coal Co. v. Squier Co., 219 S.W. 693; Twenty-one Mining Co. v. Original Sixteen to One Mine, 265 F. 469. (3) The court did not err in giving defendants' Instruction C. Lyons v. Central Coal & Coke Co., 239 Mo. 626, 144 S.W. 503; State ex rel. Kurn v. Hughes, 348 Mo. 177, 153 S.W.2d 46; Crites v. Kansas City Pub. Serv. Co., 190 S.W.2d 924; Ellis v. Ry. Co., 234 Mo. 657, 138 S.W. 23; Stanton v. Jones, 332 Mo. 631, 59 S.W.2d 648; Ward v. Fessler, 252 S.W. 667; Broderick v. Brennan, 170 S.W.2d 686. Supreme Court Rule 3.21. (4) Appellant is not entitled to a new trial on Count I on the ground that the verdict thereon was against the weight of the evidence. Clay v. Owen, 338 Mo. 1061, 93 S.W.2d 914; Lyons v. Central Coal & Coke Co., 239 Mo. 626, 144 S.W. 503.

Clark, J. Douglas, Ellison, and Hyde, JJ., and Tipton, C.J., concur; Leedy, J., dissents to the holding that the notice of appeal as to the first count was sufficient, and concurs as to the merits under count two; Gantt, J., not sitting.

OPINION

CLARK

Plaintiff sued in two counts alleging that defendants wilfully trespassed upon plaintiff's land and removed rock from under the surface thereof. The first count sought to recover the value of the rock and the second count prayed damages for the difference in value of plaintiff's property after, as compared to its value before, the trespass.

In a pre-trial conference defendants admitted removing 36,588 tons of rock from plaintiff's premises without right, but that this was not wilfully done. This left the question of wilfulness under the first count and the amount of damages under each count as the only issues to be determined. Plaintiff recovered a jury verdict for $ 1,829.40 under the first count and for $ 5,256.44 under the second count. Plaintiff's motion for new trial as to both counts was overruled. Defendants' motion for new trial as to the second count only was sustained. Plaintiff has appealed.

Respondents have filed a motion to dismiss the appeal as to both counts on the ground that the transcript was not timely filed in the trial and appellate courts; also to dismiss the appeal as to the first count on the ground that the notice of appeal does not refer to the judgment, but only to the order overruling plaintiff's motion for new trial.

The verdict was received and judgment entered on May 24. On May 29 motions for new trial were filed by both plaintiff and defendants. On June 1 the court overruled plaintiff's motion as to count one and indicated he would sustain defendants' motion as to count two unless plaintiff within ten days remitted the sum of $ 3,756.44 from the verdict on that count. On June 6 plaintiff refused to make remittitur and the court overruled her motion as to count two and sustained defendants' motion as to count two. On June 7 plaintiff filed her notice of appeal. On August 3 the court made an order extending the time for filing the transcript on appeal until November 1. The transcript on appeal was filed in the trial court on November 2 and in this court on November 3.

Appellant has filed in this court an affidavit stating that she delivered the transcript to the official reporter "for signature of the trial judge and for filing and forwarding well before November 1st." The transcript is a "full transcript of the record in the cause including the bill of exceptions" and, as it was agreed to by the parties, the signature of the trial judge was unnecessary. [Laws of Missouri 1943, p. 393, sec. 135; Mo. R.S.A. 847.135.] The approval of the trial judge to the transcript prepared under that section is required only when the parties fail to agree, but is always required to the "statement of the case" prepared under Section 136 of the Civil Code. [Mo. R.S.A., sec. 847.136.] It was the duty of appellant to procure the approval of respondents or of the trial judge to the transcript and timely file it with the clerk, not with the official reporter. However, as the receipt of respondents' attorneys shows that they received the transcript on October 26 and no showing has been made that the rights of respondents have been prejudiced by one day's delay in filing, this point in respondents' motion to dismiss is overruled.

The other point in respondents' motion to dismiss the appeal is that, although the notice of appeal brings up for review the order sustaining respondents' motion for a new trial as to the second count, it does not bring up that part of the judgment rendered on the first count. In other words, respondents say that appellant is attempting to appeal from the order overruling her motion for a new trial as to the first count rather than from the judgment itself.

Omitting caption and signature appellant's notice of appeal is as follows:

"Notice is hereby given that the plaintiff, Ida M. Connelley is taking an appeal from the judgment and decision of the Court, made on June 6, 1945, in which judgment and order the Court decreed that, since plaintiff declined to remit the sum of $ 3756.44 from the verdict of the jury rendered under Count Two of plaintiff's petition herein, that a new trial is granted as to Count Two only, under the separate motions of defendants for new trial as to Count Two; and appeals from the judgment and decision of the Court of June 6, 1945, overruling plaintiff's motion for new trial as to Count Two; and appeals from the judgment and decision of June 1st, 1945, in which plaintiff's motion for new trial as to Count One was overruled; and appeals from the action, judgment and decision overruling plaintiff's Motion for New Trial in its entirety. Said appeal is to the Supreme Court of Missouri."

The notice of appeal refers to judgments as of June 1 and June 6. No judgments were rendered on those dates. The only judgment in the case was entered on the date of the verdict, May 24 as the law requires. It did not become final and appealable until appellant's motion for new trial was overruled. The writer believes that a fair and liberal construction of the notice permits us to hold that the appeal is from the only judgment in the case, after it became final. That view is contrary to a long and unbroken line of decisions of this court. Those cases, construing affidavits and orders for appeal, under Section 1184, Revised Statutes Missouri 1939, [Mo. R.S.A. sec. 1184] which has been repealed and reenacted in substantially the same form by the new Civil Code, [Sec. 126] adhere to a strict construction of language similar to that contained in the instant notice of appeal and hold that such language constitutes an attempt to appeal from the order overruling appellant's motion for new trial rather than from the judgment made final by that order. Those cases are grounded upon the fact that the statute expressly authorizes an appeal from an order sustaining a motion for new trial, but not from an order overruling one. Of course, express statutory...