Meffert v. Lawson

• Decision Date: 16 August 1926
• Docket Number: No. 26975.,26975.
• Citation: Meffert v. Lawson, 287 S.W. 610, 315 Mo. 1091 (Mo. 1926)
• Parties: MEFFERT v. LAWSON.
• Court: Missouri Supreme Court

287 S.W. 610

MEFFERT v. LAWSON.

No. 26975.

Supreme Court of Missouri, Division No. 2.

August 16, 1926.

Motion for Rehearing Denied October 11, 1923.

Appeal from Circuit Court, Jackson County; O. A. Jucas, Judge.

Action by Charles Meffert against Martin E. Lawson, executor of the estate of Joseph F. Meffert, deceased. Judgment for plaintiff in unsatisfactory amount, and he appeals. Affirmed.

George H. Kelly, William Buchholz, I. B. Kimbrell, and Martin J. O'Donnell, all of Kansas City, for appellant.

Lathrop, Morrow, Fox & Moore and George W. Day, all of Kansas City, for respondent.

WALKER, P. J.

This action had its origin in the probate court of Jackson county. The plaintiff filed a petition in that court asking an allowance against the estate of his brother, Joseph F. Meffert, on three promissory notes, claimed to have been made by the latter to the plaintiff, as follows: One for $2.900.50, one for $500, and one for $200. Each of these notes bore interest at the rate of 6 per cent. per annum, payable annually, and if not so paid the interest was to be compounded and become a part of the principal. Upon a hearing before a jury under the statute (section 200, R. S. 1919), the demands were allowed. The executor appealed from this judgment to the circuit court, where the case was three times tried, resulting upon each trial in a judgment for the plaintiff. From the third judgment the executor appealed to this court, which reversed and remanded the case (Meffert v. Lawson, 289 Mo. 337, 233 S. W. 31). In that case the facts are set forth and discussed.

Upon the retrial of the case a verdict was rendered in favor of the plaintiff on each of the notes and a judgment entered thereon, November 14, 1924. The verdict on which the judgment was based was in the following form:

"We, the jury, find the issues for the plaintiff on the first count and do assess his damages at ($2,900.50) twenty-nine hundred and 50/100 dollars.

"We, the jury, find the issues for the plaintiff on the second count, and do assess his damages at ($500.00) five hundred dollars.

"We, the jury, find the issues for the plaintiff on the third count and do assess' his damages at ($375.27) three hundred seventy-five and 27/100 dollars."

On the 18th day of November, 1924, the plaintiff filed a motion in the circuit court for a judgment non obstante veredicto. On November 19, 1924, the plaintiff filed motions for a new trial and in arrest of judgment. The motion, non obstante, was continued from time to time until June 27, 1925, when it was overruled, and on the same day the court overruled the plaintiff's motions for a new trial and in arrest. The plaintiff thereupon appealed to this court.

Each count of the plaintiff's petition, while asking a judgment for the principal of the note, therein described, also asked a judgment for the interest due thereon, compounded as authorized by the terms of the notes. The plaintiff's contention is that under the terms of the contracts made manifest by these notes, that the parties agreed to the amount of each of the same, and that the court should have sustained his motion non obstante and entered judgment for the amount of each of the notes and interest, and having failed so to do, that the Supreme Court should reverse the ruling' of the circuit court and enter judgment for the full amount of the principal and interest of the notes. Numerous other assignments of error are made Which will be considered in the order presented. Their determination does not require a statement of the testimony.

I. A motion for a judgment non obstante veredicto is an inheritance from the common law, and despite our Code it is not obsolete. Shearer v. Trust Co., 136 Mo. App. 229, 116 S. W. 456. Its filing, therefore, in a case authorizing the same, is not regulated by the statutes in regard to motions for a new trial and in arrest of judgment, but by the rules of the common law. These rules, as is evident from the trend of authority, are succinctly stated in Hurt v. Ford, 142 Mo. 283, 44 S. W. 228, 41 L. R. A. 823, as follows: The right to file the motion is limited to the plaintiff; it must be filed before the entry of judgment on the verdict, and is only authorized when it appears from the record that the allegations of the answer constitute no defense to the action.

The verdict in the instant case was rendered on the 14th day of November, 1924, and judgment entered accordingly. Thereafter on the 18th day of November the plaintiff filed his motion for a judgment notwithstanding the verdict. As was said in State v. Commercial Bank, 6 Smedes & M. (Miss.) 218, 45 Am. Dec. 280, cited with approval in Hurt v. Ford, 142 Mo. loc. cit. 297, 44 S. W. 231, 41 L. R. A. 823, this came "too late after judgment [was] entered. That, like a motion in arrest of judgment, it must precede the entry of judgment, it being too late to arrest that which is already entered. This objection is quite technical, and yet it is in strict accordance with law. The objection is made, and there seems to be but one rule on the subject; and that is, that such a motion must be made immediately after the verdict, and before a judgment is entered on the verdict."

Another reason, not technical in its nature but based on the nature and function of the motion, is its legal impropriety under the facts in this case. This is a proceeding under the statute for the allowance by the probate court of certain claims based on the notes referred to. No formal pleadings are required in such cases. On the part of the claimant a statement of the facts on which the claim is based, sufficient to notify the executor of the nature of the claim, is all that is necessary, either in the probate court or on appeal. Rassieur v. Zimmer, 249 Mo. 175, 155 S. W. 24; Christianson v. McDermott, Est., 123 Mo. App. 448, 100 S. W. 63. No pleading is required on the part of the executor (section 197, R. S. 1919), and he may be said to tender the general issue (21 R. C. L. § 122, p. 563), which amounts to a denial of every material allegation of fact in the demand (Sublett v. Nelson, 38 Mo. 487; Smith v. Collins (Mo. App.) 243 S. W. 219). The statute dispensing with formal pleadings renders the proceedings in probate courts as to this matter subject to the rule which has always prevailed in this jurisdiction as to justice courts in which a failure on the part of the defendant to plead is regarded as a tender of the general issue. Rassieur v. Zimmer, 249 Mo. lac. cit. 181, 155 S. W. 24, and cases; Monumental Bronze Co. v. Doty, 99 Mo. App. 198, 73 S. W. 234, 78 S. W. 850. The motion can only be properly directed against the sufficiency of the plea of the defendant. In this case there was no plea, and hence there was nothing against which the motion could be leveled. "Not only this motion but the one in arrest must always be grounded upon something apparent on the face of the record." King v. Grocer Co., 188 Mo. App. loc. cit. 239, 175 S. W. 78; Slocum v. Insurance Co., 228 U. S. loc. cit. 381, 33 S. Ct. 523, 57 L. Ed. 879, Ann. Cas. 1914D, 1029, and cases.

Futile therefore as is the motion for a judgment notwithstanding the verdict, the plaintiff is in no better plight if his plea be considered as a motion for a judgment on the pleadings. Here, as in the motion non obstante, it is the pleading as shown by the record that is subject to be assailed. The pleading of the defendant must be clearly bad to justify a judgment for the plaintiff on this ground. Where, as stated, there is an utter absence of a pleading, there is a like absence of a basis for sustaining the motion as in that for a judgment non obstante. Moreover, a motion for a judgment on the pleadings can only be made either before verdict or after it has been set aside. At bar not only the verdict was in full force but also the judgment. There is therefore, as was said in Hurt v. Ford and Shearer v. Trust Co., supra, no authority for a judgment on the pleadings.

II. There is nothing to authorize the assumption that the plaintiff's plea may be construed as a motion to amend the verdict — there being nothing to amend. The verdict is so framed on each count as to leave nothing for interpretation. It correctly followed the court's instructions. In this state of the record no power exists, either in the circuit or the appellate court to enter up a judgment including the interest. The verdict upon which a judgment is entered must be that returned by the jury and he the resultant amount of their deliberations and not that ascertained by a court's calculation. A court cannot, in a case of this character, say that "as it ought to be the verdict, it must be" — Dyer v. Combs, 65 Mo. App. loc. cit. 153; Johnson v. Grayson, 230 Mo. 382, 407, 130 S. W. 673.

The right of a court to amend a verdict after the discharge of the jury is limited to matters of form or clerical errors clearly made manifest by the record, but never to matters of substance required to be passed on by the jury, which, in their nature, are essential to the determination of the case and subject to dispute. It is therefore informalities and not material matters that the court may amend. It is well ruled in Newton v. Railroad, 168 Mo. App. 199, 153 S. W. 495, that the only safe way to correct an ambiguity, if it exists in a verdict, is for the trial court to have it done before the verdict is formally received. This question as to the right of a court to calculate interest and to fix the amount of a verdict which had not been fixed by a jury is discussed and ruled upon in Boutross v. Miller (Mo. Sup.) 223 S. W. 889, in which it was held, under section 1993, R. S. 1909, now section 1423, R. S. 1919, that when a verdict is found for plaintiffs in an action for money only, the jury shall assess the amount of recovery, and that it was error for the trial court to instruct the jury that plaintiffs were entitled to recover a certain specified sum with interest at a stated rate...