J. G. Jackson Associates, Inc. v. Mosley

• Decision Date: 07 January 1958
• Docket Number: No. 29834,29834
• Parties: J. G. JACKSON ASSOCIATES, Inc., a Corporation (Plaintiff), Respondent, v. C. E. MOSLEY (Defendant), Appellant.
• Court: Missouri Court of Appeals

Page 774

308 S.W.2d 774

J. G. JACKSON ASSOCIATES, Inc., a Corporation (Plaintiff), Respondent, v. C. E. MOSLEY (Defendant), Appellant.

No. 29834.

St. Louis Court of Appeals, Missouri.

Jan. 7, 1958.

Morris A. Shenker, Owen G. Jackson, Sidney M. Glazer, St. Louis, for appellant.

Rassieur, Long & Yawitz, Robert H. Batts, Richard J. Collins, Jr., St. Louis, for respondent.

HOUSER, Commissioner.

This is an appeal from an order of the circuit court overruling a motion to set aside a default judgment. Plaintiff, a corporation engaged in architectural and engineering consulting, filed suit in the magistrate court in two counts for services rendered, but not paid for, in the preparation of working drawings for the construction of several buildings. Count I was based on the theory that defendant entered into a contract to pay $450 for such services. Count II was based on the theory of quantum meruit; that at the request of defendant plaintiff performed services of the reasonable value of $450. Defendant filed a general denial to each count. On the evidence adduced at the trial in magistrate court judgment was entered for defendant. After the case reached the circuit court on appeal the attorneys for defendant, by leave of court, withdrew. On the same day, September 24, 1956, the attorneys wrote defendant the following letter:

'As we indicated to you in prior correspondence, on today's date we withdrew as your attorneys in the above captioned matter. The case, which was set on the trial docket of September 24, was continued by the Court until January 21, 1957. I am sending a copy of this letter to Judge Ferriss, in whose division this case is set, so that it may be made a part of the file.'

The following court order was made on January 21, 1957:

'Default and inquiry granted. Cause passed to 24th of January, 1957.' On January 25 plaintiff appeared by attorney but defendant failed to appear. The case went to trial before the court sitting without a jury. The president of plaintiff corporation testified that the services in question were rendered under a contract with defendant by which the latter agreed to pay $150 for enginerring services in the preparation of each set of plans; that three sets of plans were prepared at defendant's request; that plaintiff billed defendant for the contract price of $450 but defendant failed to pay. The court thereupon rendered the following judgment:

'Now at this day comes the plaintiff by it attorney and the defendant comes not but remains in default and this cause being now submitted to the Court upon the pleadings, evidence and proofs adduced and the Court having seen and heard the same and being now duly and fully advised concerning the premises, finds the issues herein joined in favor of the plaintiff and against the defendant and that said defendant is justly indebted to said plaintiff for the sum of $450.00 and six percent interest from December 20th, 1953 to January 25th, 1957 in the sum of $83.60, making a total judgment for said plaintiff for the sum of $533.60.

'Wherefore, it is ordered and adjudged by the Court that said plaintiff have and recover of said defendant the sum of Five Hundred Thirty Three and 60/100 ($533.60) Dollars, together with interest thereon from this date at the rate of six per centum per annum and also the costs herein incurred.'

On February 12, 1957 defendant, then represented by attorney Morris Shenker, filed a motion 'to set aside the default judgment rendered against him in said cause on the 24th (sic) day of January, 1957.' Defendant alleged that after his original attorneys withdrew he intended to and was under the mistaken impression that he had instructed Mr. Shenker to represent him in this case; that at the time of the rendition of the judgment Mr. Shenker was representing him in certain condemnation, highway department and tax matters; that he believed that Mr. Shenker was representing him on January 21, 1957 in this case but later learned that Mr. Shenker had not been consulted regarding this case; that Mr. Shenker is now ready and willing to represent him and present his good and meritorious defense in which he prevailed in the magistrate court, namely, that he did not employ plaintiff to prepare the plans in question; that plaintiff desired to subdivide certain real estate owned by defendant and that the plans in question were submitted to defendant for the sole purpose of informing defendant of the type of residence plaintiff proposed to build thereon, so that defendant could determine whether he would permit his property to be subdivided, and that the contract on which plaintiff relies is void under Sec. 327.260 RSMo 1949, V.A.M.S. relating to contracts for the performance of architectural services. The court heard and overruled defendant's motion to set aside the default judgment. Defendant has appealed from the order overruling the motion.

The first question is whether the appeal is premature. The petition contained two separate counts. The judgment, a general judgment, did not dispose of the two counts individually. We have ruled that there can be but one judgment and a judgment is not final for the purposes of appeal unless it disposes of all of the counts in a petition, Hance v. St. Louis-San Francisco Ry. Co., Mo.App., 283 S.W.2d 879, and cases cited; 4 C.J.S. Appeal and Error Sec. 95, but in Hance and all of the cases cited in Hance the several counts were of such a nature that the determination of the issues on one count would not necessarily be decisive of the other counts. There is an exception to the rule of the Hance case: Where the disposition of one count and the entry of a general judgment thereon operates to settle all questions, eliminate all issues as between the parties and preclude a recovery on all other counts, there is a final judgment for the purposes of appeal. The instant appeal falls within that exception. The recovery of $450 plus interest for certain engineering services upon a contract theory settled the question and eliminated the issue whether defendant owed plaintiff $450 for the same engineering services on a theory of quantum meruit, and would preclude a recovery under Count II, for it is certain that plaintiff could not recover twice for the same thing. A similar situation arises when parties plaintiff and defendant, by petition and conterclaim, base their conflicting claims for relief on the negligence of the other party and both claims arise out of the same vehicular accident. In such case a verdict and judgment for plaintiff on his petition, without any reference to the counterclaim in verdict or judgment, may be sustained and the judgment is regarded as final for purposes of appeal, because the determination of the issue upon which the judgment is based is necessarily decisive of the whole case. Staples v. Dent, Mo.App., 220 S.W.2d 791, and authorities cited; Commercial National Bank of Kansas City, Kan. v. White, Mo.Sup., 254 S.W.2d 605. A related situation is that which occurs when a single cause of action may be established by either or both of two different theories, both of which are pleaded, but only one of which is disposed of in the judgment rendered. Example: An annexation of territory by a municipality is sought to be set aside because of (1) the invalidity of the journal entry of the meeting of the municipal body at which the ordinance of annexation was passed and (2) the unreasonableness of the extension of the city limits, and the court renders judgment setting aside the annexation on the first ground without deciding the second. In this situation we held in Steiger v. City of Ste. Genevieve, 235 Mo.App. 579, 141 S.W.2d 233, that there is nevertheless a final appealable judgment for the reason that the determination of the case on the procedural ground determined the whole cause of action or controversy between the parties, thus rendering unnecessary and unessential the determination of the further issue. The instant appeal is not premature.

Appellant's first point is that the court erred in overruling defendant's motion to set aside the default judgment because of an irregularity in the record, in that an interlocutory and 'final' judgment was taken by default in a suit where defendant filed an answer. Appellant insists upon the benefit of the rule, adverted to in Eubanks v. Missouri Nat. Life Ins. Co., 223 Mo.App. 1095, 24 S.W.2d 715, that when an answer is filed it is error to render a default judgment even though defendant does not appear for trial. This contention is based upon appellant's mistaken understanding that the action of the court on January 21 constituted the granting of an...