Lindsey v. Nagel
| Decision Date | 02 May 1911 |
| Parties | JOSEPH LINDSEY, Respondent, v. C. F. NAGEL, et al., Appellants |
| Court | Missouri Court of Appeals |
Submitted on Briefs January 11, 1911
Appeal from Lewis Circuit Court.--Hon. Chas. D. Stewart, Judge.
Judgment affirmed.
Clay & Johnson and J. M. Jeffries for appellant.
(1) The verdict of the jury is improper and insufficient in form, and not responsive to the issues made by the pleadings, in the following particulars: The verdict failed to make a separate finding on each count of plaintiff's petition. It failed also to make any finding on defendants' counterclaim. (a) Where there is a finding for plaintiff on a petition that states more than one cause of action there must be a separate verdict and a distinct assessment of damages on each count otherwise it is impossible for the court to know how the issues were found or on which count the damages are assessed. Pitts v. Fugate, Admr., 41 Mo. 405; Bricker v Railroad, 83 Mo. 391; City of St. Louis v Allen, 53 Mo. 44; Owens v. Railroad, 58 Mo. 386. (b) The jury must find for or against defendant on his counterclaim. Winkleman v. Maddox, 95 S.W. 309; Henderson v. Davis, 74 Mo.App. 1; Marshall v. Armstrong, 105 Mo.App. 234; Parsons v. Randolph, 21 Mo. App, 353; Hitchcock v. Baughan, 44 Mo.App. 42.
Marchand & Rouse and E. R. McKee for respondent.
(1) Appellants having permitted time to lapse in which they had leave to file bill of exceptions without obtaining further extension of time could not afterwards cure said omission by obtaining order permitting them to file same. Danforth v. Railroad, 123 Mo. 196; Fulkerson v. Murdock, 123 Mo. 292; Wyelie v. Heffman, 58 Mo.App. 657; Nowell v. Mode et al., 132 Mo.App. 232; Mangelsdorf Brothers Co. v. Harnden Seed Co., 132 Mo.App. 507. (2) Only record proper, pleadings, verdict and judgment, should be considered by this court. Sickles Saddlery Co. v. Bullock, 86 Mo.App. 89; State v. Seaton, 106 Mo. 198; Ryan v. Growney, 125 Mo. 474; State v. Murray, 126 Mo. 526. (3) Defendants did not plead a counterclaim. Oldham v. Henderson, 4 Mo. 295; Kinney v. Miller, 25 Mo. 576; Holzbauer v. Heine, 37 Mo. 443; Jones v. Moore & Hickman, 42 Mo. 413; Turney v. Baker, 103 Mo.App. 390; Bliss on Code Pleadings, S. 367 and N. 4. (4) The verdict is sufficient in form. Saddlery Co. v. Bullock, 86 Mo.App. 89; Nowell v. Mode, 132 Mo.App. 232; Mangelsdorf Brothers v. Seed Co., 132 Mo.App. 507; Cordage Co., v. Yeargain, 87 Mo.App. 561; Pope v. Rumsey, 78 Mo.App. 157.
The petition in this case consists of five counts, the first claiming $ 700 on account of a quantity of stone taken from a quarry under a written contract; the second, on the same contract, alleges another violation as to the terms of it as to opening and operating the quarry. The third count, on the same contract, avers that when defendants left the quarry, they violated the terms of the contract in that they had not left it in workmanlike condition; the fourth averring that while operating under the contract defendants had destroyed some fence posts; and the fifth, also pleading under the contract, alleges that defendant so carelessly did the work that a large amount of stone was thrown on plaintiff's field, to his damage.
The answer to the first count admits the making of the contract, denies any breach, avers that defendants had paid everything they were obliged to pay under it, sets out in great detail what was done in connection with it, avers that they had paid plaintiff cash according to the contract mentioned therein, at the agreed price per cubic yard, The answer to the second count was a general denial and a plea of performance, a specific denial of the various allegations of that count, denial that plaintiff had suffered any damage by reason of the cause alleged in that count. The answers to the third, fourth and fifth counts were general denials followed by an allegation in answer to the fifth count that the quarry was operated in a skillful manner and that while some stone was thrown upon plaintiff's field, none of it was negligently thrown and that plaintiff's field is so close to the quarry that stone would necessarily be thrown upon the field.
The reply was a specific denial of the new matter.
There was a trial before the court and jury and a verdict returned in this form:
"We, the jury, find for plaintiff on the first count of his petition in the sum of 335.58 dollars.
J. D. SHUMATE, Foreman.
"We, the jury, find for plaintiff on the second count of his petition in the sum of ....dollars.
J. D. SHUMATE, Foreman.
"We, the jury, find for plaintiff on the third count of his petition in the sum of ....dollars.
J. D. SHUMATE, Foreman.
"We, the jury, find for plaintiff on the fourth count of his petition in the sum of ....dollars.
J. D. SHUMATE, Foreman.
The court, receiving the verdict, entered up judgment for plaintiff in the sum of $ 335.58 and costs. Defendants prayed an appeal to this court, which was granted, and the cause is here on that appeal.
We are precluded from going into an examination of the testimony in this case or the proceedings at the trial and are confined to an examination of the record proper, as we are obliged to hold that no bill of exceptions has been filed in this case within the limit of the extension of time for filing one.
After this case had reached this court, an abstract having been filed, that abstract was attacked by respondent on the ground that it did not show any proper order extending the time for filing the bill of exceptions and that the bill of exceptions had not been filed within any time granted by the trial court. The hearing of the case before us was postponed to give appellants time and opportunity to obtain a proper nunc pro tunc entry in the trial court, if that could be done. Application was made in the circuit court for a nunc pro tunc entry, showing extension of time for filing bill of exceptions, the application was granted, a nunc pro tunc entry ordered and the proceedings in the circuit court connected with that have been brought up and are now before us.
It appears that there were two cases pending in the circuit court of Lewis county, one numbered 259, in which Joseph Lindsey was the plaintiff and C. F. Nagel was the defendant; the other, the case before us, in which Joseph Lindsey was the plaintiff and C. F. Nagel and W. J. Welsh were the defendants, numbered 272 of the circuit court of that county. It appears that number 259 had never been brought to trial or disposed of, but, so far as the record of the circuit court shows, is still pending in that court. During the March, 1906, term of that court, an order was duly entered of record in case No. 272, Lindsey v. Nagel and Welsh, in these words: "It is by the court ordered that the time heretofore given defendants in which to file their bill of exceptions be and is extended to on or before the 28th day of September, 1906." This entry appears on page 445, record No. 2, of that court. The September term of that court began on Monday, the 17th of September, 1906. There further appears in this same volume 2, of the same record of the court, at page 533, this entry: The next record entry introduced in evidence in the hearing of this application for the entry of nunc pro tunc orders in this cause before us, is in volume 3 of the circuit court records and was made at the succeeding term, that is to say at the March term, 1907, of the circuit court. That order, as entered in the case No. 272, which is the one before us, recites: "It appearing to the satisfaction of the court that the official stenographer is unable to file the bill of exceptions in the time heretofore given in which to file the same, it is hereby ordered that the time in which to file the same be and the same is hereby extended to on or before September 25, 1907." Other extensions were granted from time to time, the last made at the March, 1908, term, extending the time to September 23, 1908. These were all made and entered in the case before us, and the bill of exceptions was filed in it on September 21, 1908. It is on the foregoing entry without date, made in case No. 259, Joseph Lindsey v. C. F. Nagel, and its application to this case No. 272, the one before us, that the authority of the circuit court to make the nunc pro tunc entry must turn. That order was made on the 19th of October, 1910, and is as follows:
"Joseph Lindsey, Plaintiff, v. C. F. Nagel and William Welsh, Defendants. Case No. 272.
In the Circuit Court of Lewis County, Missouri, at Canton, September Term, 1910.
Upon this day come the parties herein, by their attorneys, and the defendants submit to the court their motion heretofore duly filed, asking the court to make and enter an order amending its record in this cause by causing to be entered nunc pro tunc in the record of this...
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