Gawk v. Millovich

• Decision Date: 04 June 1918
• Docket Number: No. 15140.,15140.
• Citation: 203 S.W. 1006
• Parties: GAWK v. MILLOVICH.
• Court: Missouri Court of Appeals

203 S.W. 1006

GAWK v. MILLOVICH.

No. 15140.

St. Louis Court of Appeals. Missouri.

June 4, 1918.

Rehearing Denied June 19, 1918.

Appeal from St. Louis Circuit Court; Kart Kimmel, Judge.

"Not to be officially published."

Action by George Gawk against B. M. Millovich. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

John A. Nolan, of St. Louis, for appellant. William Zachritz, of St. Louis, for respondent.

BECKER, J.

Plaintiff filed his cause of action in the justice court, and in the first count of his petition claims the sum of $150 for personal services rendered the defendant, and in the second count claims a balance due him from defendant of $12.50 out of a fund which he had deposited with defendant's wife for safe-keeping. Defendant's answer is a general denial to each of the counts and a separate answer and counterclaim in two counts. In the first count defendant claims that plaintiff is indebted to him In the sum of $154.98, being a balance due the defendant for moneys which came into the hands of the plaintiff while the plaintiff was in charge of defendant's business, and which plaintiff failed to turn over to the defendant. In the second count defendant claims that plaintiff is indebted to him for moneys advanced in a sum aggregating $81.95. Plaintiff's reply is a general denial. There was substantial evidence introduced by plaintiff in support of the allegations contained in both counts of his petition, and there was likewise substantial evidence introduced by the defendant in support of both counts of his answer and counterclaim. The court by its instructions submitted to the jury the causes of action contained in both the plaintiff's petition and the defendant's counterclaim. The jury returned the following verdict:

"We, the jury in the above-entitled cause, do find the issues joined in favor of plaintiff on the first count of his petition and assess his damages at the sum of $150.00. We further find in favor of plaintiff on the second count of plaintiff's petition and assess his damages at the sum of $12.50 (total $162.50)."

The verdict is thus silent with reference to the defendant's counterclaim. Judgment, however, was entered in accordance with said verdict against the defendant and in favor of plaintiff in the sum of $162.50. Defendant filed a timely motion in arrest of judgment. One of the grounds assigned therein for setting aside the verdict rendered in the case is because the verdict of the jury is...