McWilliams v. Drainage Dist. No. 19, Caldwell County

• Decision Date: 09 January 1922
• Docket Number: No. 14201.,14201.
• Citation: 236 S.W. 367
• Parties: McWILLIAMS v. DRAINAGE DIST. NO. 19, CALDWELL COUNTY.
• Court: Missouri Court of Appeals

236 S.W. 367

McWILLIAMS v. DRAINAGE DIST. NO. 19, CALDWELL COUNTY.

No. 14201.

Kansas City Court of Appeals. Missouri.

January 9, 1922.

Appeal from Circuit Court, Caldwell County; Arch B. Davis, Judge.

"Not to be officially published."

Action by G. A. McWilliams against Drainage District No. 19, Caldwell County. From a judgment for plaintiff for an insufficient amount, he appeals. On motion to dismiss appeal. Appeal dismissed.

E. C. Craig, of Mattoon, Ill., O. J. Adams, of Kingston, and W. T. Rutherford, of St. Louis, for appellant.

Paul D. Kitt, of Chillicothe, for respondent.

BLAND, J.

This is the second appeal in the case. See McWilliams v. Drainage District, 204 Mo. App. 237, 224 S. W. 35, where all the matters and facts necessary to be understood in connection with this appeal are stated. The opinion in that case concludes as follows:

"As we view this case, the judgment should be reversed, and the cause remanded, with directions to enter judgment for plaintiff for $3,226.69 and costs of suit. It is so ordered."

Upon receipt of the mandate, after the disposition of the former appeal, the trial court entered judgment for $3,226.69, in conformity with the order quoted above. Thereupon plaintiff filed a motion for a new trial, alleging that the judgment should have been for said sum plus interest thereon from November 8, 1912, to November 10, 1920, amounting in all to $4,775.50; the difference between said sums representing the interest that had accrued between said dates.

It is insisted in this appeal that the judgment should not only have been for the amount mentioned in the opinion but also for the interest mentioned supra. Owing to the view that we have taken of this appeal, it is unnecessary for us to decide whether plaintiff would have been entitled to said interest, for the reason that defendant has filed a motion to dismiss the appeal, which we think should be sustained. The ground upon which the dismissal is asked is that there can be no appeal from the last judgment entered by the trial court, for the reason that there was no trial; the court merely entering the judgment in the amount ordered by this court.

The rule applicable to a situation of this kind is stated in the case of Rees v. McDaniel, 131 Mo. 681, 682, 33 S. W. 178:

"The rule as announced by this court is that, where a cause is remanded by us with directions as to further proceedings, the case does not occupy the same status as if it had been simply reversed and remanded, but that, where special directions have been given, it is out of the power of the lower court to do anything beyond or not embraced in the specific directions."

Of course, where a judgment is merely reversed and the cause remanded, with no specific directions to the lower court, or with directions which require proceedings, then the rule is there may be in certain instances a second appeal, and upon that appeal what was held in the first appeal is not res adjudicata, unless there is no cogent or convincing reason why the questions adjudicated in the first appeal should be reconsidered. In such cases, where a manifest and far-reaching error has...