Scullin v. Wabash R. Co.

• Decision Date: 12 December 1905
• Parties: SCULLIN v. WABASH R. CO.
• Court: Missouri Supreme Court

90 S.W. 1026

192 Mo. 1

SCULLIN v. WABASH R. CO.

Supreme Court of Missouri, Division No. 2.

December 12, 1905.

1. NEW TRIAL — MOTIONS FOR NEW TRIAL AND IN ARREST — TIME FOR FILING — STATUTES.

The judgment of the Supreme Court directing the setting aside of the order granting a new trial and the entry of a judgment on the verdict is not a trial, within Rev. St. 1899, § 803, providing that all motions for new trial and in arrest shall be made within four days after the "trial," etc.; and motions for new trial and in arrest, filed after the judgment of the Supreme Court and over four years after the rendition of the verdict, must be stricken from the files, because filed out of time.

2. SAME — REMAND — AUTHORITY OF TRIAL COURT.

Where the Supreme Court directed the trial court to set aside its order granting a new trial and to enter judgment on the verdict, the trial court could only act in accordance with the directions.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by William R. Scullin, by his next friend, James Scullin, against the Wabash Railroad Company. From a judgment striking from the files motions for a new trial and in arrest, defendant appeals. Affirmed.

John F. Shepley and Douglas W. Robert, for appellant. Geo. S. Grover, for respondent.

BURGESS, P. J.

On the 17th day of March, 1900, plaintiff recovered a verdict and judgment in the circuit court of the city of St. Louis against the defendant for $20,000 for personal injuries alleged to have been sustained by him by reason of the negligence of defendant. Upon motion of defendant the verdict and judgment was set aside, and a new trial ordered, and from this last order and judgment the plaintiff appealed to the Supreme Court, where the judgment was reversed, and the cause remanded to the court below, with directions to enter up judgment upon the verdict. The case is reported in 184 Mo. 695, 83 S. W. 760, where a very full and fair statement of all the material facts may be found. Upon receiving the mandate from this court the trial court entered up judgment in favor of plaintiff for $20,000, the amount of the verdict. After this judgment was entered, and within four days thereafter, defendant filed its motions for a new trial and in arrest, both of which were stricken from the files because filed out of time. Section 803, Rev. St. 1899, provides that all motions for new trial and in arrest of judgment shall be made within 4 days after the trial, if the term shall so long continue, and if not, then before the end of the term; but, when defendant filed the motions for a new trial and in arrest of judgment, more than 4½ years had elapsed since the verdict was rendered. The statute relating to the filing of such motions is mandatory. There was but one verdict in the case to which the statute could apply, and that, as we have said, requires all such motions to be filed within four days after verdict. The order and judgment of the court in directing the trial court to enter up judgment upon the verdict was not a trial, within the meaning of that term, but simply a mandate, with specific directions to the trial court, and from the judgment rendered in pursuance of such mandate no appeal lies. Rees v. McDaniel, 131 Mo. 681, 33 S. W. 178; Chiles v. School District of Buckner, Jackson County (Mo. App.) 85 S. W. 880; State ex rel. v. Edwards, 144 Mo. 467, 46 S. W. 160; Tourville v. Wabash R. R. Co., 148 Mo. 614, 50 S. W. 300, 71 Am. St. Rep. 650.

While defendant could not have...