Lummi Bay Packing Co. v. Kryder

• Decision Date: 16 June 1924
• Docket Number: No. 15070.,15070.
• Parties: LUMMI BAY PACKING CO. v. KRYDER et al.
• Court: Missouri Court of Appeals

263 S.W. 543

LUMMI BAY PACKING CO. v. KRYDER et al.

No. 15070.

Kansas City Court of Appeals. Missouri.

June 16, 1924.

1. Judgment 194—Entered on verdict omitting finding on material issue will be reversed.

A verdict must be responsive to all the material issues, and if there is no finding as to some of them the judgment entered on the verdict will be reversed on appeal.

2. Trial 340(1)—Substantial diet cannot be supplied by court.

Where a verdict was not merely informal, but substantially defective in omitting to find a material issue, such as a failure to find on defendant's counterclaim, which raised a substantial issue, the defect could not be supplied by the court.

3. Trial 342—Verdict as written and recorded is only basis of lodgment.

The first paper brought in by a jury as a verdict did not become a verdict on which a judgment could be rendered, where such paper was not received and recorded, since a verdict as written and recorded is the only basis of the judgment entered on it.

4. Evidence 264—Admission that witness, if present, would testify certain way, does not concede truth of facts testimony would tend to support.

The admission on the part of one counsel for defense, at a hearing of plaintiff's motion to correct verdict, that if his co-counsel were present he would testify a certain way, did not concede the truth of facts which such testimony, if given, would tend to support.

5. Appeal and error 854(1)—Record held such as to preclude reversal of order overruling motion to correct verdict to supply omission of finding.

Where record proper and abstract of bill of exceptions disclosed there was only one verdict returned, and that such verdict was one received and recorded, and that it was not responsive to a material issue, and that plaintiff's motion to correct verdict to include finding on such issue, on ground that earlier verdict included it, was overruled without reasons therefor being given, appellate court could not reverse order overruling motion and direct correction of verdict as asked.

Appeal from Jackson Circuit Court; Allen C. Southern, Judge.

"Not to be officially published."

Action by the Lummi Bay Packing Company against Clarence M. Kryder and Frank T. Shepard, doing business as the Kryder-Shepard Company; defendants interposing a counterclaim. A judgment for plaintiff was entered on the jury's verdict, and the trial court sustained defendants' motion for new trial and their motion in arrest. From a judgment denying plaintiff's motion to correct verdict, and sustaining defendants' motion for new trial, plaintiff appeals. Affirmed.

J. M. Fisher end R. R. Brewster, both of Kansas City, of appellant.

Garrett, Sheppard & Smithson, of Kansas City, for respondents.

TRIMBLE, P. J.

Plaintiff's petition stated a cause of action against defendants on account, and prayed judgment for the amount thereof, to wit, $2,379.89, with interest from August 15, 1921, to date' of judgment. Defendants' answer consisted of a general denial and a plea a estoppel in pais, and further set up a counterclaim in the sum of $2,000. The reply was a general denial. After a hard-fought trial of several days, over the issues thus raised, the record shows that at the March term, March 31, 1023, the jury returned into court the following verdict:

                                 "Kansas City, Mo., March 31/23
                

"We, the jury, find the issues in favor of the plaintiff upon his petition and assess its damages in the sum of twenty-three hundred seventy-nine dollars eighty-nine cents ($2,370.80) and interest at 3 per cent. from August 15, 1921, to date in the sum of two hundred and thirty-two dollars forty-three cents.

"[Signed] E. J. Powell,:Foreman."

The record shows further that this verdict was received and duly recorded, and that judgment was entered thereon. At the seine term, and within four days thereafter, to wit, on April 3, 1923, defendants filed motions for new trial and in arrest, the latter of which contained the grounds that the verdict of the jury "is not responsive to the issues" and "fails to pass upon the issue submitted in defendants' set-off." Thereafter, on May 11, 1923, but still at the March term, plaintiff filed a motion "to correct verdict to conform with intent and finding of jury, and to enter judgment in accordance therewith." At the May term, May:8, 1023, plaintiff filed affidavits of the jurors and introduced evidence in support of the motion, all over the objections of defendants. The court took the matter under advisement, but later in the May term, to wit, July 30, 1923, overruled the motion to correct verdict. The court then, on the same day, sustained defendants' motion for new trial, "because the verdict of the jury herein is not responsive to the issues," and sustained defendants' motion in arrest. Plaintiff promptly, within four days thereafter, filed motion to set aside the order refusing to correct the judgment and the orders sustaining the defendants' motions for new trial and in arrest, and, when said motion to set aside was overruled, appealed.

The substance of the jurors' affidavits (obtained from all the jurors), offered by plaintiff in support of the motion to correct the verdict is that when the jurors considered their verdict, they unanimously agreed that the finding and verdict should be for plaintiff and against defendants, on the petition, in the sum of $2,379.89, with interest from August 15, 1921, to date, and should further be against defendants and for the plaintiff on defendants' counterclaim; and that a verdict was prepared in accordance therewith, but which did not compute the amount of the interest; that said verdict was returned into court, but that the judge, upon observing that the jury had awarded interest, but had not computed the same, informed the jury that if they desired to award interest, it was their duty to figure the amount thereof, and thereupon the jury returned to their room for the sole purpose of correcting their verdict in that particular only; that another verdict was prepared and signed by the foreman, but which by inadvertence and oversight omitted the finding on the counterclaim, and is the verdict which was returned and recorded as hereinabove set forth.

The other evidence offered in support of the motion to correct the verdict was the testimony of one of counsel for plaintiff who stated that the jury first...