Newton v. St. Louis & San Francisco Railroad Co.

• Decision Date: 03 February 1913
• Parties: W. A. NEWTON, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Kansas Court of Appeals

153 S.W. 495

168 Mo.App. 199

W. A. NEWTON, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

February 3, 1913

Appeal from Vernon Circuit Court.--Hon. B. G. Thurman, Judge.

REVERSED AND REMANDED.

Cause reversed and remanded.

W. F Evans, W. J. Orr, H. C. Clark, H. D. Green and J. H. Orr for appellant.

Scott & Bowker, M. T. January and Dooley & Hiett for respondent.

OPINION

TRIMBLE, J.

--Appeal from a judgment for thirty-five hundred dollars based upon the verdict of a jury in words and figures, as follows "We the jury find the issues for the plaintiff and assess his damages at the sum of thirty-five (3500) dollars." The appeal was taken and allowed solely on the record proper. No bill of exceptions was filed to preserve matters outside of the record, hence the case is here without either motion for new trial or motion in arrest of judgment. The error complained of is that the judgment does not follow the verdict. Appellant claims the verdict is for thirty-five dollars while the judgment is for $ 3500; and it asks this court to reverse and remand the case with directions to enter up judgment for the former sum.

Respondent's first point in opposition to the appeal is that the error, if any, cannot be noticed or corrected on appeal because no motion in arrest of judgment was filed. He makes the further contention in argument that since the alleged discrepancy between the verdict and the judgment was not called to the trial court's attention either by motion in arrest motion for new trial or motion to modify judgment, appellant's assignment of error cannot be considered.

But the alleged error appears upon the face of the record. Respondent's answer to this is that where there is no motion in arrest, nor other motion calling the court's attention to the error, there are but two instances in which the appellate court will review the record proper, namely, 1st, when the petition does not state any cause of action; 2d, where the trial court has no jurisdiction either of the subject-matter or of the parties. It is true in many of the cases where no such motions were filed and yet the error was considered, one or the other of these two conditions existed. But is it not more nearly correct to say that it is only defects that are fatal, and not defects in form or mere irregularities appearing on the face of the record, which will be considered in the absence of a motion in arrest or other motion? [Sweet v. Maupin, 65 Mo. 65.] The question then arises, does this mean defects that are fatal to the cause of action or fatal to the judgment rendered? If it means fatal to either then the further question arises, is not an ambiguous verdict necessarily fatal to a judgment based thereon? The judgment is not rendered until after the verdict has been received and recorded, and the verdict as written and recorded is the basis, and the only basis, of the judgment. The judgment must always follow and conform to the verdict, and, if that is capable of being understood in either of two or more possible ways, then it is impossible for the judgment to follow the verdict because it cannot follow in two opposite directions at the same time. So that it would seem that an ambiguous verdict is not merely irregular but is absolutely fatal to the judgment. And as said in Sweet v. Maupin, supra, "there are doubtless many opportunities for fatal errors to occur, between the filing of the pleadings and the rendition of judgment." That is, the insufficiency of the petition and want of jurisdiction are not the only fatal errors which will be considered in the absence of a motion. In McIntire v. McIntire, 80 Mo. 470, it is said that they must be material errors. In Roden v. Helm, 191 Mo. 71, 90 S.W. 798, the judgment was broader than the pleadings and there was nothing before the court except the record proper yet the appeal was considered. The case of Land Co. v. Bretz, 125 Mo. 418, 28 S.W. 656, was one in equity in which the petition was sufficient, the court had jurisdiction of the parties and of the subject-matter, and no motions for new trial or in arrest were filed. The trial court rendered judgment for defendant, which the Supreme Court held erroneous. The court asks the question, can the error be corrected in the absence of all motions to do so in the trial court, and held that it could. No motion of any kind is necessary to take an appeal. All that is required is that it be taken at the term at which judgment is rendered, a certain affidavit filed and the docket fee paid. [Secs. 2040 and 2041, R. S. Mo. 1909.] The appeal having been taken, sec. 2083, R. S. Mo. 1909, says: "The Supreme Court, St. Louis Court of Appeals, Kansas City Court of Appeals, in appeals or writs of error, shall examine the record and 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." In Bateson v. Clark, 37 Mo. 31, l. c. 34, the Supreme Court referred to the above section and said: "The record proper, by law, is the petition, summons, and the subsequent pleadings, including the verdict and judgment; and these the law has made it our duty to examine and revise; and if any error is apparent on the face of these pleadings which constitute the record, we will reverse the cause, whether any exceptions were taken or not." So that whether or not we have authority in the decisions for considering an error on an appeal taken without motions for new trial, in arrest, or to modify judgment, it would seem that we have ample authority from the statutes, provided, at least, that the error be one of substance and not of form.

It is because of the above noted distinction between errors of mere form and errors fatal to the judgment that many of the decisions cited by respondent in support of his contention with reference to the point here considered are not applicable. We have carefully gone through them all, and in every one find that the error complained of was either a mere irregularity, which was...