Magee v. Bank & Trust Co., No. 34283.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtHyde
Citation98 S.W.2d 614
PartiesANDREW L. MAGEE v. MERCANTILE-COMMERCE BANK & TRUST COMPANY, Defendant-Appellant. ANDREW L. MAGEE, Plaintiff-Appellant, v. MERCANTILE-COMMERCE BANK & TRUST COMPANY.
Decision Date12 November 1936
Docket NumberNo. 34284.,No. 34283.
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.

[98 S.W.2d 615]

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...

To continue reading

Request your trial
32 practice notes
  • Byrd v. Brown, No. 12378
    • United States
    • Missouri Court of Appeals
    • October 6, 1982
    ...the only useful rule of thumb we have found is that laid down in Magee v. Mercantile-Commerce Bank & Trust Co., 339 Mo. 559, 561, 98 S.W.2d 614, 616 (1936): We should "[overlook] the omission of mere matters of form and [hold] that [the] judgment is sufficient to support an appeal ......
  • McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., HARTMAN-HANKS-WALSH
    • United States
    • Missouri Supreme Court
    • April 13, 1959
    ...Mo.Sup., 256 S.W.2d 810; White v. Sievers, 359 Mo. 145, 221 S.W.2d 118; Magee v. Mercantile Commerce Bank & Trust Co., 339 Mo. 559, 98 S.W.2d 614 and cases cited. Therefore, the 1952 order sustaining the motion to dismiss Count II of the first amended third party petition was only an in......
  • Herndon v. Ford, No. 9042
    • United States
    • Court of Appeal of Missouri (US)
    • August 5, 1971
    ...and all issues in the case and leaving nothing for further determination. Magee v. Mercantile-Commerce Bank & Trust Co., 339 Mo. 559, 98 S.W.2d 614; Adair County v. Bennett, Mo., 183 S.W.2d 319; Scheid v. Pinkham, Mo., 395 S.W.2d 166. Consult also Harrison v. Missouri-Kansas-Texas R. Co......
  • Weller v. Hayes Truck Lines, No. 26907.
    • United States
    • Court of Appeal of Missouri (US)
    • February 19, 1946
    ...930, 59 S.W.2d 633; State ex rel. v. Trimble, 333 Mo. 51, 62 S.W.2d 473; Magee v. Mercantile-Commerce Bank & Trust Co., 339 Mo. 559, 98 S.W.2d 614. It appears from the transcript in the case at bar that the court, on March 14, 1945, rendered a judgment final in form, finding 192 S.W.2d ......
  • Request a trial to view additional results
32 cases
  • Byrd v. Brown, No. 12378
    • United States
    • Missouri Court of Appeals
    • October 6, 1982
    ...the only useful rule of thumb we have found is that laid down in Magee v. Mercantile-Commerce Bank & Trust Co., 339 Mo. 559, 561, 98 S.W.2d 614, 616 (1936): We should "[overlook] the omission of mere matters of form and [hold] that [the] judgment is sufficient to support an appeal ......
  • McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., HARTMAN-HANKS-WALSH
    • United States
    • Missouri Supreme Court
    • April 13, 1959
    ...Mo.Sup., 256 S.W.2d 810; White v. Sievers, 359 Mo. 145, 221 S.W.2d 118; Magee v. Mercantile Commerce Bank & Trust Co., 339 Mo. 559, 98 S.W.2d 614 and cases cited. Therefore, the 1952 order sustaining the motion to dismiss Count II of the first amended third party petition was only an in......
  • Herndon v. Ford, No. 9042
    • United States
    • Court of Appeal of Missouri (US)
    • August 5, 1971
    ...and all issues in the case and leaving nothing for further determination. Magee v. Mercantile-Commerce Bank & Trust Co., 339 Mo. 559, 98 S.W.2d 614; Adair County v. Bennett, Mo., 183 S.W.2d 319; Scheid v. Pinkham, Mo., 395 S.W.2d 166. Consult also Harrison v. Missouri-Kansas-Texas R. Co......
  • Weller v. Hayes Truck Lines, No. 26907.
    • United States
    • Court of Appeal of Missouri (US)
    • February 19, 1946
    ...930, 59 S.W.2d 633; State ex rel. v. Trimble, 333 Mo. 51, 62 S.W.2d 473; Magee v. Mercantile-Commerce Bank & Trust Co., 339 Mo. 559, 98 S.W.2d 614. It appears from the transcript in the case at bar that the court, on March 14, 1945, rendered a judgment final in form, finding 192 S.W.2d ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT