Russell v. St. Louis & Suburban Ry. Co.

• Citation: 55 S.W. 454,154 Mo. 428
• Court: United States State Supreme Court of Missouri
• Decision Date: 20 February 1900
• Parties: RUSSELL v. ST. LOUIS & SUBURBAN RY. CO. et al.

55 S.W. 454

154 Mo. 428

RUSSELL v. ST. LOUIS & SUBURBAN RY. CO. et al.

Supreme Court of Missouri.

February 20, 1900.

PERSONAL INJURIES — RELEASE — CANCELLATION — DECREE — APPEAL.

Where plaintiff's petition in an action for injuries contained an equity count, asking cancellation of a release given by her, and a law count, asking damages for her injuries, and a decree was rendered in plaintiff's favor on the first count, canceling the release, but no judgment was rendered on the second count, the decree was not a final judgment, appealable under Rev. St. 1889, § 2246, as amended by Act 1895, providing that any party to a civil suit may appeal from a final judgment.

Robinson, J., dissenting.

In banc. Appeal from St. Louis circuit court; John A. Talty, Judge.

Action by Dora Russell against the St. Louis & Suburban Railway Company and the Wabash Railroad Company. From a decree canceling a release given by plaintiff, defendants appeal. Dismissed.

The following is the opinion in division (MARSHALL, J.):

"Plaintiff, a passenger on one of the trains of the St. Louis & Suburban Railway Company, sues the defendants for ten thousand dollars damages for injuries sustained by her on the 4th of October, 1894, in consequence of a collision between the street car operated by the railway company with a steam car operated by the railroad company. The petition is in two counts, — the first, in equity, asking to have a release of all claim against both defendants, executed by her on the 11th of August, 1894, set aside and vacated on the ground that it was procured from her by the fraud of the agents of the defendants, while sick at the hospital from the effects of her injuries, and when she was not competent to contract, and offering to return the $185 received by her as the consideration for the contract of release, and as compensation in full for her claim to damages; and the second, an action at law for ten thousand dollars damages for such injuries. The defendants pleaded the release and a general denial. The reply was, substantially, a reiteration of the equity count of the petition. The circuit court tried the equity count separately, and entered a decree canceling the release, and both defendants appealed to this court. The record before us does not show whether the count at law has ever been tried or not, or, if so, what the result was.

"It is patent, upon this statement of the condition of the record, that this appeal was prematurely taken, and hence must be dismissed. Section 2246, Rev. St. 1889, provides that: `Any person aggrieved by any final judgment or decision of any circuit court, in any civil cause,' etc., might appeal, etc. This section was amended by the act of 1891 so as to allow appeals to be taken from certain orders and judgments entered in the progress of a cause before final judgment. By the act of April 11, 1895 (Acts 1895, p. 91), the act of 1891 amending section 2246 was itself amended so as to provide that any party to a civil suit might appeal from any of the following orders: (1) An order granting a new trial or in arrest of judgment; (2) an order refusing to revoke, modify, or change an interlocutory order appointing a receiver; (3) an order dissolving an injunction; (4) any interlocutory judgment in partition which determines the rights of the parties; and (5) any final judgment, or any special order after final judgment. Except in the cases specified, an appeal will not lie until after a final judgment in the cause in the trial court. Section 2206, Rev. St. 1889, defines a `judgment' as follows: `A judgment is the final determination of the right of the parties in the action.' So that while section 2246, Id., provides for an appeal only from a final judgment, and while the act of 1895 provides for an appeal from any judgment, they mean the same thing in law; and, although the act of 1895 allows an appeal from any judgment, it specifies the character of judgments contemplated, enumerating certain interlocutory judgments, and special orders after final judgment, and then covers the cases not already...