Cramer v. Barmon

• Decision Date: 22 February 1906
• Citation: 193 Mo. 327,91 S.W. 1038
• Parties: CRAMER v. BARMON.
• Court: Missouri Supreme Court

91 S.W. 1038

193 Mo. 327

CRAMER v. BARMON.

Supreme Court of Missouri, Division No. 1.

February 22, 1906.

APPEAL—JURISDICTION—AMOUNT INVOLVED.

Where both counts in a petition are tried together, and a verdict for defendant is directed on the first count, and defendant's motion for a new trial is sustained as to the second count after verdict for plaintiff thereon, the court has no authority to render judgment in defendant's favor on the first count; and hence on appeal only the ruling on the second count is involved, so that, where the damages claimed in that count are insufficient to give the Supreme Court jurisdiction, it is not given jurisdiction by the fact that the damages claimed in both counts, if taken together, exceed the jurisdictional amount.

Appeal from Circuit Court, Jackson County; Andrew F. Evans, Judge.

Action by Jacob Cramer against William Barmon. From orders denying plaintiff's motion for a new trial as to the first count of the petition, and granting defendant's motion for a new trial as to the second count, plaintiff appeals. Appeal transferred to Court of Appeals.

Leon Block and Frank P. Sebree, for appellant. I. J. Ringolsky, for respondent.

MARSHALL, J.

This is an action for damages. The petition is in two counts; the first for false inprisonment, and the second for malicious prosecution. The court directed the jury to find a verdict for the defendant on the first count, and submitted the second count to their determination. Pursuant to the instruction, the jury returned a verdict for the defendant on the first count, and found for the plaintiff on the second count, and assessed his damages at $1,000 actual and $500 punitive damages. Upon the coming in of the verdict the clerk entered up a judgment on the verdict in favor of the defendant on the first count and in favor of the plaintiff on the second count. The plaintiff moved for a new trial on the first count, and the defendant moved for a new trial on the second count. The court overruled the plaintiff's motion and sustained the defendant's motion, giving as reason therefor that it had erred in admitting the evidence of the foreman of the grand jury. Thereupon the plaintiff appealed to this court.

The first question that presents itself for adjudication in this case is as to the jurisdiction of this court. The plaintiff's contention is that this court has jurisdiction because there was a final judgment against him on the first count, in which he had prayed $5,000 damages, and a verdict in his favor on the second count for $1,500 which the court afterwards set aside; and that he appealed from the order and judgment of the court in both respects. If this contention is tenable, this court has jurisdiction; otherwise not, and jurisdiction is vested, under the Constitution, in the Kansas City Court of Appeals. Where there are several counts in a petition, there should be a separate finding on each count. Lancaster v. Insurance Co., 92 Mo. 460, 5 S. W. 23, 1 Am. St. Rep. 739; Brownell v. Railroad, 47 Mo. 239; Clark's Adm'x v. Railroad, 36 Mo. 203; Russell v. Railroad, 154 Mo. 428, 55 S. W. 454. At common law and theoretically under our statute a judgment is not entered upon a verdict until after the motion for a new trial and in arrest of judgment have been overruled. As a matter of practice in this state the custom has grown up of entering the judgment upon the verdict immediately upon the coming in thereof and before the filing of the motion for new trial or in arrest. This is done to prevent the party against whom the judgment is entered from disposing of his property between the date of the returning of the verdict and the entry of the judgment; but, theoretically, the judgment is not entered until after those motions have been acted upon by the court. There can be but one final judgment in a case, no matter how many counts there may be in the petition. Boothe v. Loy, 83 Mo. App. 601; Seay v. Sanders, 88 Mo. App. 478; Russel v. Railroad, 154 Mo. 428, 55 S. W. 454; Young v. Young, 165 Mo. 624, 65 S. W. 1016, 88 Am. St. Rep. 440; Warren v. Manwarring, 173 Mo. 21, 73 S. W. 447. Pursuant to the theory above stated, where there is only one count in the petition, and judgment is entered upon the verdict before the motion for a new trial is acted upon, and the motion is afterwards sustained, the judgment is impliedly set aside without any express order to that effect. Lane v. Kingsberry, 11 Mo. 402; Hurley v. Kennally, 186 Mo., loc. cit. 228, 85 S. W. 357. Here there were two counts in the petition. No separate trial was ordered by the court on those counts, as might have been done under section 694, Rev. St. 1899, if the trial court had so directed. But this section also provides: "The judgment upon each separate finding shall await trial of all the issues."

The question here presented, then, is whether, upon the court overruling the plaintiff's motion for a new trial on the first count and sustaining defendant's motion for new trial on the second count, the court could enter judgment in favor of the defendant on the first count, but leave the second count undetermined. Given the premises that there can be but one final judgment in a case, no matter how many counts there may be in a petition, and that the judgment on each count shall await the trial of all the issues, it follows that the trial court had no power to enter a judgment for the defendant on the first count until the issues presented by the second count were finally adjudicated. Then for the first time the court had power to enter a final judgment. From the foregoing it logically follows that there is no legal final judgment in favor of the defendant on the first count, and therefore the ruling of the court with respect to that count is not before this court on appeal, for a party cannot appeal until there is a final judgment in the lower court. Under the statute the plaintiff was entitled to an appeal from the interlocutory order of the trial court sustaining defendant's motion for a new trial on the second count, and, as the verdict upon that count was only for $1,500, and as that amount does not bring the case within the appellate jurisdiction of this court, and as no other jurisdictional fact is presented by the record, this court clearly has no jurisdiction of the appeal, unless it be that a verdict of a jury, like a judgment of a court, is an entirety, and that when set aside at all it is set aside in its...