Gann v. Dearborn Mfg. Co.

• Decision Date: 02 December 1907
• Parties: GANN v. DEARBORN MFG. CO.
• Court: Missouri Court of Appeals

107 S.W. 15

129 Mo. App. 425

GANN v. DEARBORN MFG. CO.

Kansas City Court of Appeals. Missouri.

December 2, 1907.

Rehearing Denied January 27, 1908.

1. NEW TRIAL — NEW TRIAL AS TO ONE OF SEVERAL COUNTS — EFFECT.

Where there is more than one count in a petition, the granting of a new trial as to part of the counts does not affect the verdict as to the others, and the new trial will be only of the counts on which it was granted.

2. JUDGMENT — CONCLUSIVENESS OF ADJUDICATION — VERDICT WITHOUT JUDGMENT.

Where plaintiff obtained a verdict, and a new trial was granted on one of two counts, the verdict on the other count was not disturbed, but, as there can be but one final judgment in a case, proceedings on the count as to which a new trial was not granted stopped at the verdict, and remained in abeyance until final judgment, and, as the court could in the meantime arrest judgment or grant a new trial on its own motion, the verdict alone could not be set up as an estoppel by way of res adjudicata on any matters arising on the second trial; but the parties could only be concluded by the final judgment.

3. SAME — ENTRY — UNAUTHORIZED ENTRY — EFFECT.

Plaintiff obtained a verdict, and the clerk immediately wrote in the record a judgment on both counts of the petition. A motion for a new trial as to one count was afterwards made by plaintiff, and continued to the next term and sustained. Held, that the judgment, improperly entered, and rendered of no effect by the motion for a new trial and continuance, did not estop plaintiff on the second trial.

Appeal from Circuit Court, Platte County; A. D. Burnes, Judge.

Action by William T. Gann against the Dearborn Manufacturing Company. From an order granting defendant a new trial, plaintiff appeals. Affirmed.

James W. Boyd and W. A. Banister, for appellant. L. C. Gabbert and J. H. Hull, for respondent.

ELLISON, J.

Plaintiff brought this action by filing a petition containing two counts. The first was for lumber sold to defendant for the sum of $1,523.26, upon which there had been a payment, leaving a balance of $1,269.70. The second was for paying the freight on such lumber and transporting three car loads of it from a railway station to defendant's factory, wherein plaintiff claimed the sum of $118.27. There was a trial at the March, 1906, term of court, at which plaintiff obtained a verdict for $681.93 on the first count and for $118.27 on the second count. Plaintiff, feeling that the verdict on the first count was for much less than he ought to have, filed a motion for new trial on that count. Defendant acquiesced in the verdict. The cause was continued on the motion for new trial to the August term following, when it was overruled, but afterwards, at same term, the order overruling it was set aside and it was sustained. At the second trial, and during the hearing of evidence, the plaintiff filed what is termed a "reply," in which he set up the verdict of the jury on the second count at the first trial. He further set up that the facts alleged in his second count were found to be true, and that defendant was estopped to deny them, and that they should stand as conclusively established by the verdict on that count, and that among those facts so concluded by the verdict were those that plaintiff had sold and delivered to defendant three car loads of lumber. At the conclusion of the evidence the court gave an instruction to the effect claimed by plaintiff in this reply, and the jury found a verdict for the plaintiff for the full amount of the first count. The defendant thereupon filed a motion for new trial, wherein, among other reasons, it was claimed that error was committed in...