Pierson-Lathrop Grain Co. v. Briton

• Decision Date: 25 February 1919
• Docket Number: No. 2417.,2417.
• Citation: 202 Mo. App. 591,209 S.W. 331
• Parties: PIERSON-LATHROP GRAIN CO. v. BRITON.
• Court: Missouri Court of Appeals

209 S.W. 331

202 Mo. App. 591

PIERSON-LATHROP GRAIN CO. v. BRITON.

No. 2417.

Springfield Court of Appeals. Missouri.

February 25, 1919.

Appeal from Circuit Court, Howell County; E. P. Dorris, Judge.

Suit by the Pierson-Lathrop Grain Company, a corporation, against J. A. Britton. Judgment for plaintiff, and defendant appeals. Affirmed.

Hiett & Scott, of Houston, for appellant. Kenneth W. Tapp, of Kansas City, and Lamar & Lamar, of Houston, for respondent.

BRADLEY, J.

Plaintiff sued in five separate counts to recover damages for the alleged failure of defendant to receive and accept a carload of oats and four carloads of corn sold by plaintiff to defendant. The cause was before this court before (195 Mo. App. 26, 189 S. W. 584), and count No. 1 was disposed of in the opinion there rendered; and the causes of action stated in counts 2, 3, 4, and 5 were again tried, resulting in a verdict for plaintiff on each of the four counts. The damages asked in the petition are as follows: Count No. 2, $32.55 ; count No. 3, $129.73 ; count No. 4, $28 ; count No. 5, $56.50. The jury returned a verdict giving damages as follows: On count No. 2, $129.83 ; on count No. 3, $32.55; on count No. 4, $28; and on count No. 5, $56.50. The total demanded in the four counts of the petition amounts to $246.78, and the total amount of the verdict is $246.88. It will be noted that the damages demanded in count 2 were $32.55, while the jury returned a verdict on this count for $129.83. Also, that the demand in count No. 3 was $129.73, and that the jury returned a verdict on this count for $32.55. The verdict on counts 4 and 5 was in accordance with prayer in those counts. Judgment was rendered on each separate count in accordance with the verdict as returned by the jury.

Defendant filed no motion for a new trial or in arrest, but brings up the record proper by his appeal. The error complained of is that the amount of the verdict on count No. 2 is in excess of the damages demanded and prayed for in that count. It is apparent that the jury confused counts 2 and 3, and returned a verdict on count No. 2 in a sum substantially equivalent to the damages prayed for in count No. 3, and returned a verdict in count No. 3 for the amount of damages prayed for in count No. 2.

Respondent contends that since appellant filed no motion in arrest, and gave the trial court no opportunity to first pass upon the alleged error, appellant is precluded from pressing the point here. Section 2081, R. S. 1909.

No one will contend that a motion for a new trial or in arrest is a prerequisite to an appeal, if appellant desires only to appeal from errors appearing in the record proper. All that is required to take an appeal is compliance with sections 2040 and 2041, R. S. 1909. The appeal was taken in this cause without the formality of any motion for a new trial or in arrest ; therefore the only record before us is the record proper, which consists of the petition, summons, and all subsequent pleadings, including the verdict and judgment. Bateson v. Clark et al., 37 Mo. loc. cit. 34 ; Roden v. Helm, 192 Mo. loc. cit. 93, 90 S. W. 798. All that a motion in arrest would have reached in this cause is the record proper ; but, since such motion is not a prerequisite in order to bring up the record proper on appeal, such motion would have been wholly useless, unless, as contended by respondent, this court is precluded from reviewing any alleged error which the trial court did not pass upon. Respondent contends that all errors or irregularities, though apparent on the face of the record, but not going to jurisdictional matters proper, must be called to the attention of the trial court by motion in arrest in order to make such alleged errors or irregularities questions for review. In other words, plaintiff insists that there are but two instances in which an appellate court will review errors and irregularities apparent on the face of the record proper when there is no motion in arrest: (1) Where the petition does not state any cause of action; (2) where the trial court has no jurisdiction either of the subject-matter or of the parties. The same contention was made in Newton v. Railroad, 168 Mo. App. 199, 153 S. W. 495. It was there pointed out that it is true in many cases where no motion in arrest was filed, and where the alleged error was considered, that one or the other of these conditions existed ; but it was held in that case that an ambiguity in a verdict apparent upon the face of the record would be considered on appeal, though no motion in arrest was filed. An ambiguity in a verdict is not such an error or irregularity as would fall under either of the classes mentioned, and, it such an irregularity as ambiguity of a verdict will be considered on appeal without a motion in arrest, then we cannot see why the same reason would not make reviewable the question presented here. In Bateson v. Clark et al., supra, the court cites quite a number of authorities in support of its holding, and we think the conclusion reached is sound and sensible.

In Balch v. Myers, 65 Mo. App. 422, in forcible entry and detainer, the complaint placed plaintiff's damages at $250, and the monthly rents and profits at $20. The verdict of the jury fixed plaintiff's damages at $510, and the monthly rents and profits at $37.50, and judgment was rendered accordingly. The defendant did not call attention to the error by motion in arrest, and the respondent there urged that, not having called the attention of the trial court to the alleged error by motion in arrest, the question could not be raised. But the Kansas City Court of Appeals held the question reviewable, although no motion In arrest was filed. The court, by Oil, J., said:

"After a laborious consideration of the decided cases in this state (many of which have been cited by plaintiff's learned counsel), I find it quite difficult to evolve therefrom any settled rule as to what errors in the record proper may be taken advantage of in the absence of a motion in arrest filed in the trial court. Some of the best-considered cases seem to base the distinction on the question whether or not the error is fatal, or, as some express it, material. Sweet v. Maupin, 65 Mo. 65; McIntire v. McIntire, 80. Mo. 470. But when the various rulings are examined, it will be found, I think, impossible to harmonize them on any such grounds. In my opinion, however, we shall be more in accord with the prevailing decisions of the Supreme Court, if we determine the error in this case as material, and of such a character as to warrant our attention and judgment, notwithstanding the failure of the defendant to file the appropriate motion in the circuit court. The error unquestionably appears on the face of the record proper. The complaint, verdict, and judgment in this case constitute the record proper."

We are of the opinion that the error complained of by appellant in the case at bar is reviewable here without the formality of a motion in arrest. Balch v. Myers, supra ; ...