Erdbruegger v. Meier

• Citation: 14 Mo.App. 258
• Parties: HENRY ERDBRUEGGER, Respondent, v. ANTON MEIER, Appellant.
• Decision Date: 06 November 1883
• Court: Court of Appeal of Missouri (US)

14 Mo.App. 258

HENRY ERDBRUEGGER, Respondent,

v.ANTON MEIER, Appellant.

St. Louis Court of Appeals, Missouri.

Nov. 6, 1883.

APPEAL from the St. Louis County Circuit Court, EDWARDS, J.

Affirmed.

FREDERICK GOTTSCHALK for the appellant: There must be a separate finding upon each issue.-- Clark v. Railroad, 36 Mo. 215; The State ex rel. v. Dulle, 45 Mo. 270; Brownell v. Railroad, 47 Mo. 243.

COLLIER & MUENCH, for the respondent: “Where the finding is a general one, it will raise a presumption that all the issues have been duly considered by the jury ( Stout v. Calver, 6 Mo. 256); and where the finding is merely defective or imperfect, the judgment will not be reversed, unless a motion has been made in the inferior court to arrest the judgment, and overruled.”-- Finney v. The State, etc., 9 Mo. 636; Mooney v. Kennett, 19 Mo. 551; Davidson v. Peck, 4 Mo. 446; Pitts v. Turgate, 41 Mo. 406; St. Louis v. Allen, 53 Mo. 49.

BAKEWELL, J., delivered the opinion of the court.

This was an action for a balance of $130, due for extra work in building a dwelling house for defendant.

The answer has three counts. The first is a general denial. The second sets out that the building was to be erected according to certain plans and specifications, and specifies sundry particulars in which the building, as erected, varies from the contract; by reason of all which it is alleged that the house as erected is worth $500 less than the house required by the plans and specifications. The third count sets up a counter-claim for work done by defendant for plaintiff worth $42, for which defendant asks judgment. The replication denies the new matter in the answer, says that all the changes were made under the contract by consent of both parties, and denies that the building was lessened in value by all of them, and alleges that defendant accepted the building as complying with the contract, and expressly waived any claim for departure from the specifications. As to the second counter-claim, there is a denial of all allegations in respect to it. A jury was waived, and the court found for plaintiff the sum of $106.50.

The only ground upon which we are asked to reverse the judgment is, that there was not a separate finding on each issue, and on each of the last two counts of the answer.

In support of this view, we are referred to some cases (36 Mo. 215; 45 Mo. 270, and 47 Mo. 243), in which it is held that, where a petition sets out two or more causes of action or subjects of complaint there should be a separate assessment on each count, and a verdict for a gross sum can not be sustained, and furnishes sufficient matter for arrest of judgment on motion.

If there is anything in the objection in the present case, the matter is not properly saved for review.

There is no question as to the merits: and it might fairly be considered in the present case that the general finding for plaintiff should be regarded as an express negative to every plea. The ancient practice is relaxed; and, at a time, and in states where attention to form was more rigidly enforced than it is at present with us, a similar finding has been sustained; and it has been called an “affectation of precision” by Chief Justice Gibson, to arrest the judgment on grounds so purely technical. Strohecker v. Drinkle, 16 S. & R. 39. But, be that as it may, the question could only be raised by motion in arrest. Where the verdict finds only part of the matter in issue, omitting to find either way another material part, that is ground for arresting the judgment. Steph. Plead., note 7. It is an imperfect finding; and that can be taken advantage of only by motion in arrest. Finney v. The State, 9 Mo. 642.

It may be said that “mistake of the jury” is one of the statutory grounds for new trial. Rev. Stats., sect. 3704. But the finding of an imperfect verdict, or a neglect to find a verdict on all the issues, is not a mistake of the jury within the meaning of this section.

It has always been held, so far as we know, that a motion in arrest is the proper mode of reaching an imperfect verdict. This being so, it is well settled that the appellate courts will not review errors to which the attention of the trial court was not properly called.

The judgment is affirmed. Judge LEWIS concurs. Judge THOMPSON dissents.

Dissenting opinion of THOMPSON, J.

This is an action for a balance due on a building contract. The answer contains three counts: 1. A general denial. 2. A count in the nature of a plea in recoupment. 3. A counter-claim setting up that the defendant is indebted to the plaintiff in the sum of $42, on an independent contract, for which the defendant asks judgment by way of set-off. The plaintiff filed a reply putting this new matter in issue. The case was tried by the court without a jury. The bill of exceptions recites that there was evidence tending to prove the averments of the petition and reply, and also evidence tending to prove the averments of the answer. All of the declarations of law asked for by both parties were given except one, and that is not in the record. The entry of the final judgment recites: “The court finds the issues herein joined in favor of the said plaintiff, and doth assess the damages sustained by the said plaintiff by reason of the premises at the sum of $106.50. It is, therefore, considered,” etc. The defendant filed no motion in arrest of judgment, but he filed a motion for a new trial, in which one of the grounds taken was that the finding was “not responsive to all the issues.”

It appears from the foregoing statement that the court made no distinct finding upon this counter-claim for $42, arising upon an independent contract. This, I think, was error. The defendant had pleaded it; it was a distinct and independent cause of action upon which he was entitled to invoke the judgment of the court; and he was entitled to have the amount found due in respect of it, if anything, set off against any amount which might be found due from him to the plaintiff, upon the plaintiff's cause of action against him.

It has long been the rule in this state that a general verdict in favor of the plaintiff upon a petition which sets up in separate counts several distinct causes of action, is erroneous. Mooney v. Kennett, 19 Mo. 551; Clark v. Railroad Co., 36 Mo. 202, 215; Pitts v. Fugate, 41 Mo. 405; The State ex rel. v. Dulle, 45 Mo. 269; Bigelow v. North Mo. R. Co., 48 Mo. 510; St. Louis v. Allen, 53 Mo. 44; Owens v. Hannibal, etc., R. Co., 58 Mo. 386, 394; Seibert v. Allen, 61 Mo. 482, 488. For stronger reasons, where an independent cause of action, arising upon a contract entirely disconnected from the plaintiff's cause of action, is set up by way of counter-claim, the defendant is entitled to a distinct verdict thereon.

But the question remains, was this error properly brought to the attention of the trial court by a motion for a new trial? Beyond question, the general practice has been to raise the question that the verdict of the jury, or the finding of the court sitting as a jury, is not responsive to the issues, by a motion in arrest of judgment. Davidson v. Peck, 4 Mo. 438; Griffin v. Samuel, 6 Mo. 51; Finneyv. The State, 9 Mo. 632, 636; Clark v. Hannibal, etc., R. Co., 36 Mo. 202, 215; Pitts v. Fugate, 41 Mo. 405; The State ex rel. v. Dulle, 45 Mo. 269, 271; St. Louis v. Allen, 53 Mo. 44; Owens v. Hannibal, etc., R. Co., 58 Mo. 386, 394; Seibert v. Allen, 61 Mo. 482. It is equally true that before our present practice act it was several times held that judgments would not be reversed for this cause in the supreme court unless motions had been made to arrest the judgment for such cause in the court below, and overruled. Davidson v. Peck, 4 Mo. 438; Griffin v. Samuel, 6 Mo. 51; Finney v. The State, 9 Mo. 632, 636. It does not appear that in any of these cases an attempt was made to raise the question by a motion for a new trial merely, and hence, it does not appear that the judgment of the court was distinctly invoked upon the question whether it could be raised by such a motion. But it will be perceived that the reason given for requiring it to be raised by a motion in arrest of judgment, was precisely the same as the reason which has been given by the supreme court and by this court for requiring the party complaining of errors which were committed at the trial, to make his complaint to the trial court by a motion for a new trial. Thus, in one of the cases above cited, it was said by Scott, J., as a reason for requiring the defect under consideration to be taken advantage of by a motion in arrest of judgment, that “inasmuch as the attention of the circuit court was not directed to the defect where it could have been readily corrected, no advantage could be taken of it here.” Finney v. The State, supra. Following down through the cases which have arisen under our present practice act, I can find none where an opinion is distinctly indicated that such a defect must be taken advantage of by a motion in arrest, and that it can not be taken advantage of by a motion for a new trial. Two or three cases are found which indicate the contrary. Thus, it was said in one case, by Birch, J.: “Our jurisdiction being appellate purely, we are, of course, unauthorized to consider anything as a ground for reviewing a proceeding or a judgment here which was not brought to the notice, and hence not finally passed upon in the court below, either in the motion for a new trial, if the alleged errors have relation to proceedings during the trial, or in arrest of judgment if going to,” the pleadings. Warner v. Morin, 13 Mo. 455. In a later case the supreme court was asked to reverse a judgment because there had been a general verdict upon a petition which stated in several counts as many distinct causes of action. There had been a motion for a new trial, but no motion in arrest of judgment. The motion for a new trial did not set up the defect of the verdict. The supreme court held, on the authority...