Maplegreen Realty Company v. Mississippi Valley Trust Company
| Decision Date | 27 November 1911 |
| Citation | 141 S.W. 621,237 Mo. 350 |
| Parties | MAPLEGREEN REALTY COMPANY v. MISSISSIPPI VALLEY TRUST COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel G. Taylor Judge.
Affirmed.
E. M Grossman and Jones, Jones, Hocker & Davis for appellant.
Kinealy & Kinealy for respondent.
(1) The action of the circuit court in overruling defendant's exceptions to the report of the referee is not open for review by this court because defendant did not in its motion for a new trial complain of that action of the trial court. State ex rel. v. Hurlstone, 92 Mo. 327; Arkansas Land Co. v. Ladd, 103 Mo.App. 83; Bosley v Cook, 85 Mo.App. 422. (2) Exceptions to a referee's report, and necessarily therefore a motion for a new trial in such cases, must specifically and definitely point out the alleged error or matter complained of. Wiggins Ferry Co. v. Railroad, 73 Mo. 389; Singer Mfg. Co. v. Givens, 35 Mo.App. 602; Dallas v. Brown, 60 Mo.App. 493; Cahill v. McCormish, 74 Mo.App. 609; State v. Scott, 214 Mo. 257. (3) As defendant has not undertaken to abstract the evidence before the referee, no exception to the referee's report or ground for a new trial, based upon the evidence, can be reviewed by this court. Reed v. Peck, 163 Mo. 336; Plumbing Co. v. Brewing Co., 126 Mo.App. 270; Furstenfeld v. Furstenfeld, 131 S.W. 361.
H. S. Priest for appellant in reply.
Inasmuch as we do not challenge the correctness of the referee's report as to facts, the testimony taken before him is of no importance and would be an useless encumbrance upon the record. The office of a motion for new trial is to call the attention to supposed errors during the progress of the trial, that is, the investigation of the facts in issue. Crossland v. Admire, 118 Mo. 87; Ewald v. Young, 119 Mo.App. 485; R. S. 1909, sec. 2022. Is there of the quoted assignments of cause in the motion for new trial sufficient to call to the attention of the court below the errors here complained of in the referee's report? We repeat them: "The verdict is for the wrong party"; and "The referee erred in his declaration of law." Closely coupled with these two assignments of error are two others which, in association, draw the attention of the court to the position of the appellant in this court on the merits of the controversy. They are these: "The court erred in overruling the demurrer to the evidence offered at the close of plaintiff's case"; and "The referee erred in overruling the demurrer to the evidence at the close of plaintiff's case." Words take color and meaning by textual association and in the presence of things discussed. A verdict technically means the pronouncement of a jury upon the facts of a case. In a generic and more common meaning, it means the expression of an opinion upon a submission. There was no trial by jury in this case. The court, of its own motion and against the exception of the defendant, referred the case for the ascertainment of both law and fact. The report of the referee was a verdict upon facts and a declaration of his views of the law, which the court confirmed upon a consideration of exceptions to the report. The court below could not have understood the verdict mentioned in the assignments of the motion for a new trial as referring to anything except the report of the referee. He could not have under-stood "declaration of law" to have reference to anything except the conclusions of law ascertained by the referee as applicable to the facts which the referee found. Hence the court below could not have been misled or deceived or uninformed as to the propositions which these assignments were meant to cover and did cover. McCullagh v. Allen, 10 Kan. 150; Morgan v. Keller, 194 Mo. 677. There is very good authority for calling the report of the referee a verdict. It has time and again been likened to a special verdict by this court (Howard County v. Baker, 119 Mo. 397), and is given by express legislative enactment the same force and effect as a "special verdict." R. S. 1909, sec. 2013. (2) But if no exceptions had been filed and no motion for new trial had been filed; if the undisputed facts as found by the referee were not sufficient in law to support the judgment, appellant is entitled to a reversal. The "record proper" consists of the pleadings, the verdict and the judgment. Nicol v. Hyre, 58 Mo.App. 134; Railroad v. Carlisle, 94 Mo. 166. The verdict and judgment are a part of the "record proper," and this court may consider without motion for new trial errors that there appear. The statute says (Sec. 2013) if the report of a referee be confirmed "judgment shall be rendered thereon in the same manner and with like effect as upon a special verdict." It is thus adopted as a special verdict and must support the judgment as would the verdict of a jury. It is a part of the record proper, and if like the petition, does not support the judgment, or, like the major or minor premise of a syllogism does not support the conclusion, it is erroneous and fallacious and cannot stand. The judgment is "rendered in the same manner" and "with like effect" as upon a special verdict. In both form and effect under this law, it must be treated as a special verdict. A special verdict is one where all the facts, as the jury finds them to be proved, are reported and the jury pray the advice of the court thereon conditionally, that if, upon the facts reported as a matter of law, the court should be of the opinion the plaintiff had a cause of action, then they find for the plaintiff; if otherwise, for the defendant. Statler v. United States, 157 U.S. 277. Our statute concerning references does not seem to contemplate that the referee shall do more than find the facts, thus meeting entirely the definition of special verdicts. The court has time and again held that the report of the referee appointed by consent has the standing of a special verdict. Wiggins v. Railroad, 73 Mo. 389; Vogt v. Butler, 105 Mo. 479. While the referee's findings of facts are conclusive, where there is substantial evidence to support them, his conclusions of law may be rejected and the law properly applied to the found or conceded facts. Wiggins Ferry Co. v. Railroad, 73 Mo. 389; Gamble v. Gibson, 83 Mo. 290; Lingenfelder v. Brewing Co., 103 Mo. 578. So that it must be conceded in a suit at law or in equity that the referee's report under our statutes stands as a special verdict and constitutes a part of a record, and if the conclusions of law applicable to the findings of fact are incorrectly applied in the report that this error would be corrected on appeal, because the report is a part of the record proper, and is subject to review as would a petition which failed to state a cause of action. This rule has been applied by this court in a variety of ways from a very early date. Shore v. Coons, 24 Mo. 556; Land Co. v. Bretz, 125 Mo. 422; Bower v. Daniel, 198 Mo. 318. In the case at bar, in passing we observe that both parties have agreed, by statements made in their briefs and abstracts, that the referee's finding of facts is correct, and such agreement gives the report the force and effect of an agreed statement. Land Co. v. Bretz, 125 Mo. 418; Bower v. Daniel, supra. Fitzpatrick v. Weber, 168 Mo. 572; Daggs v. Smith, 193 Mo. 501. It seems to us a work of supererogation to continue the citation of authorities upon this proposition. The following authorities support the proposition that the referee's report which is erroneous on its face will be reversed upon appeal, although no exception thereto or motion for new trial was filed by the aggrieved party, and this upon the theory that the report of the referee stands as a special verdict under the statute and constitutes a part of the record proper. Land Co. v. Bretz, 125 Mo. 418; Blount v. Spratt, 113 Mo. 54; Shore v. Coons, 24 Mo. 556; Daggs v. Smith, 193 Mo. 500; Fitzpatrick v. Weber, 168 Mo. 572; Leavitt v. Taylor, 163 Mo. 169; Hughes v. Ewing, 162 Mo. 294; Bower v. Daniels, 198 Mo. 318; Gillett v. Trust Co., 82 N.E. 908; Bank v. Nickell, 49 S.E. 1003, 1005; In re Garrison v. Trust Co., 77 Mo.App. 337; Foster v. Mackey, 4 Mo.App. 590; Wade v. Peacock, 49 S.E. 826. Daggs v. Smith, 193 Mo. 501.
OPINION
In Banc
Suit in equity for accounting; issues joined by answer and reply; a reference below; a report by the referee; exceptions by defendant overruled; and judgment for plaintiff for $ 8,494.86. Defendant appeals.
There is a cross-appeal by plaintiff from a judgment in favor of defendant on certain items. Such cross-appeal has been briefed as a separate appeal. It will be convenient to preserve that method of consideration here. Accordingly, it will be determined in a separate opinion.
The bill runs on the theory that plaintiff owned "a subdivision," known as Greenwood, part in the city and part in the county of St. Louis; that defendant had a real estate department and plaintiff, desirous to sell its lots, in April, 1904, appointed defendant its agent to sell and receive payment; that defendant accepted such appointment and thereunder sold many lots and collected much money, which it had refused on demand to account for. Relief was prayed that defendant be required to furnish a statement and account of all such money, etc.; that an account be taken between plaintiff and defendant; that plaintiff have judgment for the amount so found due; and for such further relief as may be equitable and just.
An amended answer was accompanied by exhibits purporting to be an account between defendant and plaintiff on lot sales receipts, expenses, expenditures and payments. The accounts are intricate and...
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Sullivan v. St. L.-S.F. Railway Co.
...a new trial. The matter therefore cannot be reviewed on appeal. Sec. 1459, R.S. 1919; State ex rel. v. Woods, 234 Mo. 26; Maplegreen Co. v. Trust Co., 237 Mo. 362. (4) Appellant's counsel, in his argument, told the jury that, although there was no liability, his client was willing to pay pl......