Pfau v. Breitenburger

• Decision Date: 17 March 1885
• Citation: 17 Mo.App. 19
• Parties: J. L. PFAU ET AL., Respondents, v. T. BREITENBURGER ET AL., Appellants.
• Court: Missouri Court of Appeals

17 Mo.App. 19

J. L. PFAU ET AL., Respondents,

v.T. BREITENBURGER ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Mar. 17, 1885.

APPEAL from the St. Louis Circuit Court, HORNER, J.

Reversed and judgment.

LOUIS GOTTSCHALK, for the appellants.

THOROUGHMAN & VALLIANT, for the respondents.

ROMBAUER, J., delivered the opinion of the court.

Upon a former trial of this cause the plaintiffs obtained, November 10, 1881, a decree in the trial court against the defendants, Breitenburger & Brass, for the sum of $1950.00, with interest at the rate of six per centum per annum from November 15th, 1881. The decree thus obtained provided that out of the sum of $1950.00 and interest the plaintiffs should pay as soon as they had collected the same to defendants, Harris & Joy, the sum of $165.00 with interest thereon at the rate of six per centum per annum from January 1st, 1877. From the decree thus rendered the defendant Brass appealed to this court, but the plaintiffs, the respondents herein, did not appeal.

Upon the former hearing of the case in this court (13 Mo. App. 595), the decree of the lower court was reversed, and the cause was remanded, not for retrial of the whole cause, however, but for the sole purpose of enabling the lower court to take testimony as to two items, which this court thought ought to be proved to enable the lower court to complete its decree. This court, while sustaining the trial court in other respects, was of opinion that the decree was incomplete, in this: that it failed to make any disposition of an allowance, which defendant Breitenburger had obtained against the estate represented by defendant Brass, and which allowance was based on part of the claim in controversy. This court in its then opinion expressly declared, that whatever errors the trial court might have committed as against the then appellees, were not subject to review in this court. As far as the appellees were concerned their rights were determined by that decree, regardless of the fact whether the decree was right or wrong. This proposition indeed is elementary.

After the cause was remanded for the purposes aforesaid, the trial court did not retry the cause, but as commanded by this court heard evidence solely in regard to the two items mentioned in the opinion of this court. In so doing it was clearly right. In restating the account, however, for a new decree, it did not adopt the basis of the former decree of the court, but seems to have taken the testimony on which the former decree was made, and which was not before it, and some comments made upon that testimony in the former opinion of this court, which was not before it for that purpose, and in so doing was clearly wrong. The trial court by this process arrived at a result more unfavorable to defendant Brass than the result arrived at in the former decree, and granted to the respondents herein, who were also respondents in the former appeal, redress somewhat in excess of that demanded in their petition, and largely in excess of the...