Musser v. Harwood

• Court: Kansas Court of Appeals
• Writing for the Court: HALL, J.
• Citation: Musser v. Harwood, 23 Mo. App. 495 (Kan. App. 1886)
• Decision Date: 06 December 1886
• Parties: SOLOMON MUSSER, Appellant, v. J. F. HARWOOD ET AL., Respondents.

23 Mo.App. 495

SOLOMON MUSSER, Appellant, v. J. F. HARWOOD ET AL., Respondents.

Court of Appeals of Missouri, Kansas City.

December 6, 1886

APPEAL from Clinton Circuit Court, HON. GEORGE W. DUNN, Judge.

Reversed and remanded.

Statement of case by the court.

The plaintiff in this suit was the defendant in the case of Robinson v. Musser, reported in 78 Mo. 153. In that case the plaintiff therein, in accordance with the order of the circuit court to that effect, gave a bond, in the usual form, with the defendants in the present case as sureties, to secure the payment of all costs that might be adjudged against the plaintiff in that said case. Robinson had judgment in the circuit court and Musser appealed therefrom to the supreme court. In the latter court, as shown by the reported opinion of the court, it was held that the plaintiff had no case, and the judgment of the circuit court was simply reversed.

Upon the opinion of the supreme court thus delivered, the following judgment was entered in said court:

" Now at this day again come the parties aforesaid, by their respective attorneys, and the court here being now sufficiently advised of and concerning the premises, do consider and adjudge that the judgment aforesaid, in form aforesaid, by the said Ray county circuit court rendered, be reversed, annulled and for naught held and esteemed, and that the said appellant be restored to all things which he has lost by reason of said judgment. It is further considered and adjudged by the court that the said appellant recover against the said respondent his costs and charges herein expended and have therefor execution."

Afterwards this action was instituted, upon the bond given for security for the costs in the original case, againsts these defendants who were sureties on said bond, for the recovery of the costs paid by this plaintiff, which had been taxed in both the circuit and the supreme courts. The court below held that, by the judgment of the supreme court, the costs taxed in that court only had been adjudged against the plaintiff in the original case, and that the defendants here were liable as such sureties for those costs only. From a judgment accordingly entered the plaintiff has appealed to this court.

WILLIAM HENRY, for the appellant.

I. In construing judgments and other records, the whole record must be looked to and taken together. Freeman on Judgments [3 Ed.] sects. 45, 54.

II. The judgment of the supreme court in the case of Robinson v Musser, was a final judgment, and was against Robinson for all costs therein. And to ascertain its effect, if doubtful, it should be construed with reference to the nature of the case to which it relates. See Case, 78 Mo 153; Hunt v. Hopkins, 83 Mo. 13. To construe the judgment of that court so as to adjudge against Robinson the costs of appeal only, is to give to such judgment the effect of leaving unadjudged all the costs in the case which had accrued in the lower court, and to impute to that court the most flagrant disregard of a plain statutory duty. Sect. 900 Rev. Stat.

III. The judgment is a final one --is for all costs in the case--and is proper and in accordance with a good and wholesome practice, and is justified by our practice act. Sects. 3672, 3776, 3779, Rev. Stat.; Nash's Plead. and Pract. [[[Rev. Ed.] 689, 690.

J. F. HARWOOD and RAMEY & BROWN, for the respondents.

I. The obligation sued on will be strictly construed, and if there is no judgment against plaintiff for the defendants' costs in the circuit court, the judgment of the lower court must be affirmed. Nofsinger v. Hartnett, 84 Mo. 549.

II. The judgment of the supreme court in the case of Robinson v. Musser, is only for the costs of that court. Evans v. Wilder, 5 Mo. 313. The judgment only annuls the judgment of the circuit court; it does not purport to adjudicate the rights of the parties. Laith v. McDonald, 7 Kan. 234; 2 Bouvier's Law Dict. 589, Title, " Reverse."

III. The question has already been adjudicated in case of the motion in the supreme court to tax the costs in the case of Robinson v. Musser. That court, upon said motion, refused to tax, or in any way ascertain the costs expended in the circuit court by plaintiff.

HALL J.

It is true that the jurisdiction of the supreme court " is defined and limited by the constitution" of this state, and that such jurisdiction is appellate only, with certain well known exceptions, such as cases of habeas corpus, mandamus, quo warranto, prohibition, etc. Vail v. Dinning, 44 Mo. 211. But under our practice act (sect. 3776, Rev. Stat.) it is the duty of the supreme court, in appeals or writs of error, to " award a new trial, reverse or affirm the judgment or decision of the circuit court, or give such judgment as such court ought to have given, as to them shall seem agreeable to law." The same or similar provisions have been in force ever since the foundation of the state, and existed even prior thereto, under the territorial government. Meyer v. Campbell, 12 Mo. 607. The supreme court and the two courts of appeals have always exercised the power conferred by said provisions, and have rendered in appropriate cases such judgments as they have determined the circuit court should have rendered. Darrier v. Darrier, 58 Mo. 222; Durkel v. Chambers, 57 Mo. 576; Bell v. Railroad, 86 Mo. 612 (on re-hearing); Speak v. Dry Goods Co., 22 Mo.App. 122. It is too late at this day to question the constitutionality of said provisions.

The supreme court had the power to reverse the judgment of the circuit court, and to render final judgment in favor of the defendant in the case of Robinson v. Musser; it had the power to reverse such judgment and dismiss the petition in such case. Gatewood v. Hart, 58 Mo. 261; Jenkins v. McCoy, 50 Mo. 348; McGee v. Laramore, 50 Mo. 425.

A reversal of the judgment and dismissal of the petition by the supreme court would have been a final determination of the case. Did the simple reversal of the judgment, without remanding the case, have the same effect? Both modes have been indiscriminately used by all the appellate courts of this state in finally determining cases. In the cases last cited the judgments were reversed and the petitions dismissed.

But in other cases to accomplish the same end the judgments have been simply reversed and the cases not remanded. In Bell v. Railroad (supra ), the court held that the plaintiff had made no case and that the defendant ought to have had judgment in the circuit court, and finally disposed of and determined the case by simply reversing the judgment. In Walden v. Dudley (49 Mo. 422), the court held likewise, and simply reversed the judgment. And in Speak v. Dry Goods Co. (supra ), the St. Louis court of appeals, by Thompson, J., said: " The judgment will be reversed. The plaintiff has had his day in court, has failed to make out a case or to offer any evidence in contradiction of the evidence of defendant, which is clear, consistent, and entirely probable, and which shows that plaintiff has no case. It does not, therefore, appear that the ends of justice will be served by remanding the cause. The judgment will be reversed merely. It is so ordered." We quote the above language as so clearly showing the practice in this state in this respect. It would be an endless and fruitless task to discover and cite all the cases in our reports, in which cases have been finally determined by our appellate courts by simply reversing the judgment. We are clearly of the opinion that the supreme court, by ordering simply the reversal of the judgment in the case under discussion, intended to, and did, finally determine it, as said court had the full power so to do.

The judgment actually entered was a final judgment upon the merits, and was a complete bar to another suit on the same cause of action by the plaintiff, Robinson. The judgment of a simple reversal was entered in accordance with the opinion of the court, and, as has been said, it was intended to and did have the effect stated.

By section 990, Revised Statutes, it is provided: " In all civil actions or proceedings of any kind the party prevailing shall recover his costs against the other party, except in those cases in which a different provision is made by law." Had the judgment which was entered by the clerk of the supreme court wholly followed the opinion and order of that court, it would have adjudged against the plaintiff, Robinson, all the costs expended by the defendant, Musser, taxed in the circuit court as well as those taxed in the supreme court. And we think that the judgment entered did, in fact, do so. The words " his costs * * * herein expended," used in the judgment, in our opinion, mean the costs expended in the case, and not those only expended in the supreme court. " Herein" refers to the case, and not to the court.

The case of Evans v. Wilder (5 Mo. 313), cited by counsel for the defendants, is not an authority against our construction of the judgment. The meaning of that case is made more clear by the subsequent case of Meyer v Campbell (12 Mo. 607). A reading of the two cases together will show that in the former the point decided by us was not in the mind of the...