State ex rel. Missouri Pac. Ry. Co. v. Broaddus

• Decision Date: 06 June 1908
• Parties: STATE ex rel. MISSOURI PAC. RY. CO. v. BROADDUS et al.
• Court: Missouri Supreme Court

111 S.W. 508

212 Mo. 685

STATE ex rel. MISSOURI PAC. RY. CO. v. BROADDUS et al.

Supreme Court of Missouri.

June 6, 1908.

1. JUDGMENT — CORRECTION — REMITTITUR.

The entry, after judgment, of a remittitur from the verdict, does not set aside or nullify the judgment, nor amount to the rendition and entry of a new judgment for the sum of the verdict less the amount of the remittitur; but the party filing the remittitur should correct the judgment to conform to the remittitur and cause a new entry of the judgment to be made.

2. COURTS — APPELLATE JURISDICTION.

Where plaintiff in a judgment for $5,500, on which $132 interest had accrued, filed a remittitur of $1,000 from the verdict, and allowed the judgment to stand for the full amount of the verdict, instead of correcting the judgment to conform to the remittitur, and causing a new entry of the judgment to be made, as he should have done, the amount involved was $4,632, and therefore in excess of the jurisdiction of the Kansas City Court of Appeals.

In Banc. Mandamus by the state, on the relation of the Missouri Pacific Railway Company, against E. J. Broaddus and others, to compel the respondents, as judges of the Kansas City Court of Appeals, to transfer the cause to the Supreme Court. Peremptory writ issued.

This is a proceeding by mandamus, instituted by the relator against the respondents, judges of the Kansas City Court of Appeals, commanding them to transfer to this court the case of J. M. Partello against relator, the Missouri Pacific Railway Company, which was an appeal from a judgment of the circuit court of Jackson county in favor of said Partello and against said railway company. The facts of the case are undisputed, and are substantially as follows, as appear from the alternative writ, to wit:

On the 14th day of April, 1906, on the trial of the case of J. M. Partello v. Missouri Pacific Railway Company in the circuit court of Jackson county, Mo., at Independence, the jurors returned a verdict for plaintiff in the sum of $5,500, and thereupon a judgment was immediately rendered and entered of record for plaintiff for said sum and interest thereon at the rate of 6 per cent. per annum. On the 17th day of April, 1906, relator filed its motion for a new trial, and also its motion in arrest of judgment. On the 9th day of June, 1906, both of said motions were overruled, and relator excepted. On the 12th day of June, 1906, relator filed its motion to set aside the order overruling its motion for new trial. On the 5th day of July, 1906, during the pendency of the last-mentioned motion, plaintiff filed a remittitur of $1,000. On the 14th day of July, 1906, the following order was made and entered of record: "On Saturday, July 14, 1906, being the twenty-sixth day of the June term, 1906, defendant's motion to set aside order overruling motion for new trial was by the court sustained, and, it appearing to the court a remittitur of $1,000 from the verdict having been made, said motion for a new trial is overruled, and excepted to by defendant." No new judgment was entered after the filing of said remittitur.

On the 8th day of September, 1906, relator filed its application and affidavit for appeal and appeal bond. In said application, filed with said affidavit and bond, it asked that the appeal should be granted to the Supreme Court; but the circuit court granted the appeal to the Kansas City Court of Appeals. On the 21st day of November, 1906, relator filed in said Kansas City Court of Appeals a certified copy of the judgment and order granting an appeal. On the 5th day of April, 1907, before any briefs had been filed or the cause submitted to said court, relator filed in said Kansas City Court of Appeals a motion setting up the facts herein set forth and asking that said cause be transferred to this court, which motion was by said Court of Appeals overruled. Afterwards said cause was submitted on briefs, and on the 27th day of January, 1908, the judgment was affirmed by said Court of Appeals. On the 6th day of February, 1908, relator filed in said court its motion for rehearing, which motion was...