Lasley v. Ridenour
| Decision Date | 01 March 1954 |
| Docket Number | No. 21984,21984 |
| Parties | LASLEY v. RIDENOUR. |
| Court | Missouri Court of Appeals |
M. E. Ford, Ellis Cook, Ray Eckles, Maryville, for appellant.
Wade Beavers, Ellis Beavers, Grant City, for respondent.
Plaintiff brought this action to recover certain items claimed to be due him and growing out of an alleged written farm lease made with the defendant lessee, and other transactions with the defendant. The first count of the petition seeks to recover farm rent and certain advancements made to defendant both under said lease and under a later oral revision of the same. The second count is to recover damages for the breach of the contract for failure to perform certain services on and about the farm. The third count prays recovery of $20 for pasture rent. The answer denies the charges made (with a few exceptions) and pleads a counterclaim consisting of two counts. The first count is to recover for services on the farm in the total amount of $160. The second count consists of several items claimed for alleged breaches by the plaintiff of a partnership agreement to farm the property in question, totaling $2468.44. Plaintiff's reply denied the new matter set forth in the answer and counterclaims.
The jury found for the plaintiff on his petition in the amount of $180.98, and for the defendant on his counterclaims in the amount of $1300.98. Judgment was entered January 10, 1953 for the defendant in the net amount of $1120. Plaintiff filed a motion for new trial, whereupon the court suggested a remittitur by the defendant of $20 as a condition for overruling the motion. The remittitur was made April 20, 1953 and on that date the court made an order 'for the purposes of making effective said remittitur', setting the judgment aside, made a new entry of judgment for $1100 as of the date of the verdict, and overruled the motion for new trial. Plaintiff filed a motion to set aside the new entry of judgment. This motion was not passed upon. The plaintiff appealed from the judgment entered on the date of the verdict.
At the outset the plaintiff makes the point that the entry of judgment made by the court on April 20, 1953 is void, being made without authority. He contends that the judgment having been rendered on January 10, 1953, and the court having suggested a remittitur of $20 by the defendant, and the remittitur having been made on April 20, 1953 as a condition to overruling the motion for new trial, the court had power and authority then to set aside the judgment of January 10, 1953, but had no power or authority to enter a new judgment as of January 10, 1953. The plaintiff does not suggest any other method of giving proper credit for a remittitur under such circumstances. The action of the court in making the new entry of judgment as of the date of the verdict for the amount of the verdict, less the amount remitted by the defendant, was not the rendition of a new judgment in the sense urged by the plaintiff, even though in so doing the original judgment was set aside in the process and re-entered as corrected. It was, in effect, a proper correction of the existing judgment to give effect to the amount thereof remitted.
That a new entry of judgment as corrected by the remittitur is not only proper but necessary is indicated in State ex rel. Missouri Pacific Ry. Co. v. Broaddus, 212 Mo. 685, 111 S.W. 508, 509. There a remittitur was entered without the formality of a new entry of judgment and it was contended that the entry of remittitur itself nullified the judgment, leaving the amount involved the original judgment less the remittitur. The Supreme Court held that the entry of the remittitur, without any further entry 'did not set aside or nullify the judgment of the circuit court, nor amount to the rendition and entry of a new judgment for the sum of the verdict, less the amount of the remittitur.' The court ruled that the amount involved on appeal was the original amount of the judgment in the absence of a new entry giving credit for the remittitur.
The procedure herein followed is the customary and accepted method of giving credit on a judgment for a remittitur. Meyer v. St. Louis Public Service Co., Mo.App., 253 S.W.2d 525; Counts v. Thompson, 359 Mo. 485, 222 S.W.2d 487. We think the judgment of January 10, as re-entered and corrected by the court April 20, 1953, in order to credit the remittitur, was not void for want of the court's authority so to do.
Unfortunately, the trial court denied the plaintiff's motion for a reference in this case. While it is true that the total of the claims is not large, they are very numerous, calling for a meticulous accounting, some arising out of express contracts, some out of implied contracts, some for moneys advanced, and for services rendered. Plaintiff's claims, submitted to the jury, were sixteen in number and made in three counts of his petition. Defendant's counterclaims were ten in number, made in two counts. Much of the evidence had to do with whose livestock had what increase, whose machinery was used, removed or repaired; what the various crops were, whether proper division of shares were made and received, what breaches of the contract were committed and by whom, and what items were still in controversy. So confused became the proof that the counsel for the parties stipulated at the close of the testimony that the instructions might disregard the counts pleaded and that the items might be submitted generally as made under plaintiff's petition and under defendant's counterclaim. There was imposed upon the court the precarious and laborious task of conducting such an accounting in a jury trial and to instruct the jury properly upon the multitudinous issues involved. Ajax Rubber Co. v. White, 216 Mo.App. 283, 264 S.W. 466, Section 515.020 RSMo 1949, V.A.M.S. A like burden is now cast upon the appellate court to review the errors claimed to have arisen out of the voluminous record of the proceedings. However, the plaintiff does not preserve the point on appeal that the court erred in refusing a reference and we shall confine our opinion to the points made. Because of the disposition made of the appeal on the points assigned, we deem it unnecessary to set out the evidence, except where essential to the points discussed.
Plaintiff claims that Instruction 4 directs the jury to find for him as to certain items claimed in his petition, but that defendant's Instruction 1 and the court's Instruction 6 authorized the jury to find against plaintiff on his petition. It is urged that those instructions are, therefore, contradictory on their face and constitute reversible error. To understand this point it is necessary to set forth Instruction 3, given at plaintiff's request. It reads as follows:
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Estes v. Francis
...reference was said by the reviewing court to have been proper or not reversibly erroneous. In two of plaintiff's cases [Lasley v. Ridenour, Mo.App., 265 S.W.2d 744, 746(2); Phillips v. Todd, Mo.App., 180 S.W. 1039, 1043(9)], the appellate court suggested that reference should have been orde......
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Kansas City Power & Light v. Bibb & Assoc.
...of a new judgment but correction of the existing judgment to give effect to the amount remitted. Id. (quoting Lasley v. Ridenour, 265 S.W.2d 744, 745 (Mo.App.1954))(emphasis in Walton does not support KCPL's proposition that a trial court has authority to enter a judgment effective as of th......
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Walton v. U.S. Steel Corp., 31509
...That a court has the power and authority to enter the new judgment as of the date of the original judgment was held in Lasley v. Ridenour, Mo.App., 265 S.W.2d 744, 745, where it was said: '* * * The action of the court in making the new entry of judgment as of the date of the verdict for th......
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Fox' Estate, In re, 31337
...Guidicy v. Guidicy, 361 Mo. 1127, 238 S.W.2d 380; St. Louis Housing Authority v. Bainter, Mo.Sup., 297 S.W.2d 529; Lasley v. Ridenour, Mo.App., 265 S.W.2d 744. The respondent quite properly asserts that if the plaintiff failed to make a case submissible to a jury, we cannot grant a new tria......