Magee v. Bank & Trust Co.

• Decision Date: 12 November 1936
• Docket Number: No. 34284.,No. 34283.,34283.,34284.
• Citation: 98 S.W.2d 614
• Court: Missouri Supreme Court
• Parties: ANDREW L. MAGEE v. MERCANTILE-COMMERCE BANK & TRUST COMPANY, Defendant-Appellant. ANDREW L. MAGEE, Plaintiff-Appellant, v. MERCANTILE-COMMERCE BANK & TRUST COMPANY.

98 S.W.2d 614

ANDREW L. MAGEE v. MERCANTILE-COMMERCE BANK & TRUST COMPANY, Defendant-Appellant. ANDREW L. MAGEE, Plaintiff-Appellant, v. MERCANTILE-COMMERCE BANK & TRUST COMPANY.

No. 34283.

No. 34284.

Supreme Court of Missouri.

Division One, November 12, 1936.

Appeal from Circuit Court of City of St. Louis. — Hon: Moses Hartmann, Judge.

APPEALS BY PLAINTIFF AND DEFENDANT DISMISSED.

Aug. G. Walz for appellant.

Thompson, Mitchell, Thompson & Young, C.P. Berry and Ronald J. Foulis for respondent.

HYDE, C.

This is an action to recover the par value of bonds, which plaintiff purchased from defendant upon an agreement (claimed to have been part of the transaction of purchase) to repurchase them at par whenever plaintiff desired to resell. The cause was tried on an amended petition containing five counts. Both parties have appealed from what was entered as the judgment in the case.

This judgment is, as follows:

"Now at this day come again the parties hereto by their respective attorneys, comes also again the jury heretofore sworn and impaneled herein. Thereupon the trial of this cause is resumed and progressed and at the close of all of the evidence, the Court at the request of the defendant gave and read to the jury instruction number four in the nature of demurrers to the evidence as to counts number 2, 3, 4, and 5 of plaintiff's amended petition. Thereupon the trial of this cause further progressed as to the remaining count number 1 and being terminated, the jurors aforesaid upon their oaths as aforesaid, say:

"We, the Jury in the above cause, find in favor of the plaintiff, on the issues herein joined on Count one of the petition, and assess plaintiff's damages at the sum of $11,738.06 Dollars, with interest thereon at six per cent per annum from May 18, 1929 to January 15, 1935, amounting to $3984.88, aggregating $15,722.94 Dollars."

"Wherefore, it is considered and adjudged by the Court that plaintiff have and recover of the defendant on count one of his petition, the sum of Fifteen thousand seven hundred twenty-two and 94/00 ($15,722.94) Dollars, together with the costs of this suit and have therefor execution."

[1] The bill of exceptions shows that the trial began on January 14, 1935, and that this judgment was entered on January 15th. Defendant filed a motion for new trial on January 17th and plaintiff filed a motion for new trial on January 18th. These motions were both overruled on the same day at the next term and appeals were taken by both parties during that term. The record contains no verdict on counts 2, 3, 4, and 5 and no judgment even purporting to dispose of them. Section 1018, Revised Statutes 1929, provides for an appeal "from any final judgment," and from certain specified interlocutory orders and judgments which do not appear in, and therefore have no bearing on this case. The right of appeal is purely statutory, exists only where it is specified, or can be implied from statutory provisions, and a compliance with mandatory statutory requirements is essential to the exercise of this right. [Boyd v. Logan Jones Dry Goods Co., 335 Mo. 947, 74 S.W. (2d) 598; Stephens v. Oberman Mfg. Co., 334 Mo. 1078, 70 S.W. (2d) 899; Pence v. Kansas City Laundry Service Co., 332 Mo. 930, 59 S.W. (2d) 633; Manthey v. Kellerman Contracting Co., 311 Mo. 147, 277 S.W. 927; Pfotenhauer v. Ridgway, 307 Mo. 529, 271 S.W. 50.] [2] Section 1070, Revised Statutes 1929, provides that "a judgment is the final determination of the right of the parties in the action." Section 1077, Revised Statutes 1929, provides that "only one final judgment shall be given in the action." A judgment, to be final and appealable, must dispose of all parties and all issues in the cause. [Boyd v. Logan Jones Dry Goods Co., 335 Mo. 947, 74 S.W. (2d) 598; Stephens v. Oberman Mfg. Co., 334 Mo. 1078, 70 S.W. (2d) 899, Id. (Mo. App.), 79 S.W. (2d) 516; Cox v. Frank L. Schaab Stove & Furniture Co., 332 Mo. 492, 58 S.W. (2d) 700, Id. (Mo. App.), 67 S.W. (2d) 790; Ford v. Ford (Mo.), 24 S.W. (2d) 990; Dixon v. St. Louis Transit Co., 197 Mo. App. 646, 198 S.W. 431; Cramer v. Barmon, 193 Mo. 327, 91 S.W. 1038; Russell v. St. L. & S. Ry. Co., 154 Mo. 428, 55 S.W. 454; Ray v. Missouri Christian College (Mo. App.), 93 S.W. (2d) 1030.] "A judgment is not considered final which settles part only of several issues of law or fact." [Barlow v. Scott (Mo.), 85 S.W. (2d) 504, l.c. 519, and authorities cited.]

In order to prevent delay and to reasonably interpret these statutes, this court has overlooked the omission of mere matters of form and held that a judgment is sufficient to support an appeal "when it appears to have been intended by some competent tribunal as the determination of the rights of the parties to an action, and shows in intelligible language the relief granted." [Stith v. J.J. Newberry Co., 336 Mo. 467, 79 S.W. (2d) 447.] However, the judgment here does not merely omit matters of form or show defectively that a final result was reached. The trouble is that it grants no...