Needles v. Burk

• Decision Date: 24 June 1889
• Citation: 98 Mo. 474,11 S.W. 1008
• Parties: NEEDLES v. BURK.
• Court: Missouri Supreme Court

11 S.W. 1008

98 Mo. 474

NEEDLES v. BURK.

Supreme Court of Missouri.

June 24, 1889.

APPEAL — REVERSAL — SECURITY FOR COSTS.

1. The reversal of a judgment rendered for plaintiff upon two counts of a petition setting up distinct causes of action for errors solely relating to the first count, if not limited to the issue on that count, sets aside the verdict as to both counts, and the action, when remanded, is triable de novo.

2. The plaintiff, after the action was remanded, having been required to give security for costs accruing, and to accrue, under penalty of a dismissal of the action, as provided by Rev. St. Mo. § 986, which he failed to do, cannot dismiss as to the

first count and have judgment on the former verdict as to the second, even if the reversal did not affect the trial of the issue as to the latter count.

Appeal from circuit court, Johnson county; NOAH M. GIVAN, Judge.

Transferred from Kansas City court of appeals.

J. M. Crutchfield, for appellant. O. L. Houts, for respondent.

BLACK, J.

The petition is in two counts, each for a distinct cause of action. The jury returned a verdict for plaintiff for $143.60 on the first, and for $5 on the second, count. Defendant appealed, and this court reversed the judgment, and remanded the cause. 81 Mo. 569. The circuit court then made a rule on the plaintiff to give security for costs within 60 days. At a subsequent term, and without having obeyed the rule, the plaintiff dismissed as to the first count, and moved for judgment on the second on the former verdict. Pending this motion the court dismissed the suit for failure of plaintiff to give security for costs, as required by the former rule. Plaintiff appealed to the Kansas City court of appeals, where the judgment was affirmed, and the case was then certified to this court.

1. The argument of the plaintiff is that the original judgment in his favor was reversed only as to the first count; that, upon dismissing as to that count, he had a right to a judgment on the second without further trial. Where there are several causes of action, the court may direct separate trials, the judgment to await the trial of all the issues. Section 3603, Rev. St. In such cases, the awarding of a new trial as to one count would not call for a new trial as to the other counts. If all the issues are tried at the same time, with a verdict upon each cause of action, we can see no reason why the court might not award a new trial as to one cause of action and let...