Hoelzel v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 17 March 1937
• Docket Number: 34878
• Citation: 102 S.W.2d 577,340 Mo. 793
• Parties: Frank Hoelzel v. Chicago, Rock Island & Pacific Railway Company, a Corporation, and Arthur J. Williams, Appellants
• Court: Missouri Supreme Court

102 S.W.2d 577

340 Mo. 793

Frank Hoelzel v. Chicago, Rock Island & Pacific Railway Company, a Corporation, and Arthur J. Williams, Appellants

No. 34878

Supreme Court of Missouri

March 17, 1937

Appeal from Clinton Circuit Court; Hon. R. B. Bridgeman Judge.

Reversed and remanded (with directions).

Luther Burns, Henry S. Conrad, L. E. Durham, Hale Houts and I. M. Lee for appellants.

(1) The court erred in permitting and entering an order of dismissal as to defendant Carden. The court erred in entering the judgment entered against appellants following the order of dismissal as to Carden and without any disposition of the liability of Carden by trial. In all these respects the orders and judgments of the court were invalid and void. The court was bound by the mandate, decision, order and directions of this court, and in each and all respects the orders and judgments entered were outside of and unauthorized by and were in violation of, the mandate, decision, order and directions of this court. Chouteau v. Allen, 74 Mo 56; State ex rel. Dixon v. Givan, 75 Mo. 516; Stump v. Hornback, 109 Mo. 272; Rees v McDaniels, 131 Mo. 681; Fanning v. Doam, 146 Mo. 98; Keaton v. Jorndt, 259 Mo. 190; Meyer v. Bobb, 184 S.W. 105; Zeitinger v. Hargadine-McKittrick D. G. Co., 309 Mo. 455; Young v. Thrasher, 123 Mo. 312; First Nat. Bank v. Franklin Bank, 233 S.W. 13; State ex rel. Robertson v. Kelley, 293 Mo. 301; Tourville v. Railroad Co., 148 Mo. 623; State ex rel. Dixon v. Givan, 75 Mo. 516; 18 C. J. 1158; Inman Mfg. Co. v. Am. Cereal Co., 136 N.W. 932; Wiethaupt v. St. Louis, 158 Mo. 659; Johnson v. Conrades, 232 S.W. 681; Case v. Espenchied, 188 Mo. 731. (2) Regardless of the dismissal and assuming that the court had power and jurisdiction to enter up judgment against the appellants upon a dismissal as to Carden, the court erred and entered an invalid judgment in ordering and adjudging that the old judgment reversed by this court, stand and be in full force and effect against appellants. And the court erred and entered an invalid judgment in ordering and adjudging that plaintiff recover interests from the 10th day of October, 1931, upon the amount of the judgment and as upon a judgment as of October 10, 1931. The mandate, judgment, orders and directions of this court precluded the court from continuing or re-instating the old judgment and from entering up any judgment other than a new judgment as following the mandate of this court, and from allowing any interest other than interest upon a new judgment from and of the date of a new judgment entered following receipt of the mandate of this court. Tourville v. Railroad Co., 148 Mo. 623; Young v. Thrasher, 123 Mo. 312; Citizens Nat. Bank v. Donnell, 195 Mo. 570; Wise Coal Co. v. Columbia Lead & Zinc Co., 143 Mo.App. 587; Keaton v. Jorndt, 259 Mo. 190; Sec. 2841, R. S. 1929; Carton v. Lafayette County, 125 Mo. 67; Scullin v. Wab. Railroad Co., 192 Mo. 11; Meyer v. Boff, 184 S.W. 106.

James P. Aylward, Pross T. Cross, Gerald Cross, George V. Aylward and Terence M. O'Brien for respondent.

(1) The dismissal as to the engineer did not violate the mandate. Rogers v. Rogers, 265 Mo. 210, 177 S.W. 385; Berkson v. Ry. Co., 144 Mo. 216, 45 S.W. 1119; Stith v. Newberry Co., 336 Mo. 496, 79 S.W.2d 462; State ex rel. Cunningham v. Haid, 328 Mo. 213, 40 S.W.2d 1050; Peoples Bank v. Yager, 329 Mo. 773, 46 S.W.2d 587; Lavignon v. Dietzel, 34 S.W.2d 83. (2) The allowance of interest from the date of the original verdict and judgment did not violate this court's mandate. Nothing in the mandate prohibits interest. Keaton v. Jorndt, 259 Mo. 90, 168 S.W. 736; Crook v. Tull, 111 Mo. 291, 20 S.W. 8; Catron v. Lafayette County, 125 Mo. 70, 28 S.W. 331; Ex parte Republic of Colombia, 195 U.S. 605, 49 L.Ed. 340; Secs. 1064, 1259-60, R. S. 1929; Deschner v. Railroad Co., 200 Mo. 335, 98 S.W. 737; Sebastian Coal Co. v. Mayer, 310 Mo. 116, 274 S.W. 774. (3) This appeal was vexatious, and therefore plaintiff should be awarded ten per cent damages from appellants. Sec. 1064, R. S. 1929.

OPINION

Hays, J.

This is a second appeal. The action was for personal injuries, brought by the plaintiff against the above-named railway company and its engineer, Carden, and its fireman, Williams, as defendants. The verdict and judgment went against the three defendants and they appealed. On that appeal this court (337 Mo. 61, 85 S.W.2d 126) reversed the judgment and remanded the cause with directions.

After the remand the circuit court, on motion of plaintiff, entered a judgment dismissing the cause as to Carden, and entered judgment against the two remaining codefendants on the former verdict. The company and the fireman have brought the present appeal, which presents for decision the question, Did the court below in rendering the purported judgment follow the mandate of this court?

When the plaintiff moved as stated, counsel for the company and for Williams objected and excepted, and throughout saved their exceptions, on the ground that it violated the mandate, and on the further ground -- also presented here -- that the matter of plaintiff's right to dismiss had become res adjudicata by reason of this court's denial, in the former appeal, of a motion to dismiss the cause, filed herein after the opinion had been delivered.

In anticipation of considering the form of the directions to be given on the remand we referred in the former opinion (l. c. 76) to the earlier doctrine of looking on a judgment as an entirety, to be reversed as to all if reversed as to one. We pointed out that "the later and better rule is to go deeper than the mere shell of the judgment and look into the nature of the case itself, and where the interests of the parties to an appeal may be rightfully severed, where the errors do not affect the parties jointly and where the rights of one party are not dependent upon those of another, then, it is not necessary to reverse the entire judgment. [Elliott on Appellate Procedure, secs. 474-475.]" In that connection we observed also that the error, mentioned above, did not affect the defendants jointly and that it was not calculated to affect any one except Carden.

We further pointed out, l. c. 77, that the rendition of two judgments in the same case could be prevented by reversing the judgment and remanding the cause with directions to hold in abeyance the verdict as to both liability and amount of damages as to the defendants against whom no error was committed, until the case was finally disposed of as to the liability only of the other defendant, then enter judgment for the amount of the verdict held in abeyance against all defendants finally held liable. And such was the disposition which this court in conclusion, by its judgment, made of the former appeal and for those express reasons.

So, it appears, the purpose of our mandatory direction was to dispose of the only remaining issue in the case, liability vel non of Carden, and the verdict was suspended to accommodate itself to that eventuality upon which the vitality of the verdict, as to him, was made to depend.

In such case the mandate constituted a limited power of attorney to the court below and the opinion, which is a part thereof serves an interpretative function. [State ex rel. McGrew Coal Co. v. Ragland, 339 Mo. 452, 97 S.W.2d 113, 115.] It was not necessary for this court to dictate, and it did not dictate, in what manner the mandate should be complied with. [Fanning v. Doan, 146 Mo. 98, 100, 47 S.W. 896.] Our mandate meant in that respect, and ex vi termini in view of the reasons upon which it was predicated, as they are noted above, could properly be interpreted as meaning only, that the court to which it was addressed should follow it in one of the modes permitted by law. By it jurisdiction and authority were granted that court to take...