Stephens v. D.M. Oberman Mfg. Co.

• Decision Date: 09 April 1934
• Parties: Ray Stephens, Guardian and Curator of the Estate and Person of John F. Green, Appellant, v. D. M. Oberman Manufacturing Company, a Corporation, D. M. Oberman and Charles Melton
• Court: Missouri Supreme Court

70 S.W.2d 899

334 Mo. 1078

Ray Stephens, Guardian and Curator of the Estate and Person of John F. Green, Appellant, v. D. M. Oberman Manufacturing Company, a Corporation, D. M. Oberman and Charles Melton

Supreme Court of Missouri

April 9, 1934

Appeal from Boone Circuit Court; Hon. H. A. Collier, Judge.

Transferred to the Kansas City Court of Appeals.

Barney Reed and Sid C. Roach for appellant.

Ragland Otto & Potter and Clark, Boggs, Cave & Peterson for respondents.

Hyde C. Ferguson, C. , concurs; Sturgis, C. dissents.

OPINION

HYDE

This case, coming to the writer by reassignment, is an action by a guardian and curator for personal injuries to his ward, a person of unsound mind, who was struck by an automobile driven by defendant Melton as chauffeur and employee of the other defendants. The jury returned the following verdict:

"We, the jury, find for the plaintiff and against the defendants, D. M. Oberman Manufacturing Company, a corporation, and D. M. Oberman, and assess plaintiff's damages at the sum of $ 4,000, and we further find in favor of the defendant, Charles Melton."

Judgment was entered upon this verdict reciting it and other preliminary proceedings and concluding as follows:

"It is therefore ordered and adjudged by the Court that the plaintiff have and recover of and from the defendants D. M. Oberman Manufacturing Company, a corporation, and D. M. Oberman, the sum of Four Thousand Dollars ($ 4000), the damages so assessed by the jury as aforesaid, together with all costs of this cause, and that execution issue therefor.

"It is further ordered and adjudged by the Court that the plaintiff take nothing by his writ against the defendant Charles Melton, and that judgment herein be for said defendant, Charles Melton, and that said defendant, Charles Melton, recover of and from the plaintiff his costs in his behalf made and expended, and that he have execution issued therefor."

Timely motions for new trial and in arrest were filed, the disposition of which is shown by the following orders:

"Now on this day comes the plaintiff herein, by his attorneys, and calls up for hearing his motion for new trial heretofore filed in this cause, and the same being seen and heard by the court is overruled.

"Also comes the defendant D. M. Oberman Manufacturing Company, and calls up for hearing its motion for a new trial heretofore filed in this cause, and the same being seen and heard by the court is overruled.

"Also comes the defendant D. M. Oberman, by his attorneys, and calls up for hearing his motion for new trial heretofore filed in this cause, and the same being seen and heard by the court is overruled.

"Also comes the D. M. Oberman Manufacturing Company, by its attorneys, and calls up for hearing its motion in arrest of judgment heretofore filed in this cause, and the same being seen and heard by the court is sustained.

"Also comes the defendant D. M. Oberman, by his attorneys, and calls up for hearing his motion in arrest of judgment heretofore filed in this cause, and the same being seen and heard by the court is sustained.

"It is therefore ordered and adjudged by the Court that the judgment heretofore entered in this cause be, and the same is arrested as to the defendants D. M. Oberman Manufacturing Company and D. M. Oberman, and that said judgment is for naught held as to said defendants D. M. Oberman and D. M. Oberman Manufacturing Company, but that said judgment remain in full force and effect as otherwise entered."

Thereafter, plaintiff filed an affidavit for appeal in statutory form and appeal was granted to this court. Defendants D. M. Oberman Manufacturing Company and D. M. Oberman appealed from the orders overruling their motions for a new trial, but these appeals have been abandoned. These defendants have filed a motion to transfer this cause to the Kansas City Court of Appeals "because the only question before the court on this appeal is whether or not the trial court erred in arresting the judgment as to D. M. Oberman Manufacturing Company and D. M. Oberman, and as the amount of the judgment was only Four thousand dollars ($ 4,000) this appeal is within the jurisdiction of the Kansas City Court of Appeals."

The right of appeal in actions at law did not exist at common law but is conferred by statute. [2 R. C. L. 27, sec. 2; 3 C. J. 299, sec. 3.] It is a familiar rule that the right of appeal exists, therefore, only where the statute provides for it and that a compliance with mandatory statutory procedure is essential. [Pence v. Kansas City Laundry Co., 332 Mo. 930, 59 S.W.2d 633; Manthey v. Kellerman Contracting Co., 311 Mo. 147, 277 S.W. 927; Pfotenhauer v. Ridgway, 307 Mo. 529, 271 S.W. 50.] We have no authority to act on appeals beyond that provided for by the Legislature. Plaintiff's appeal is from the order in arrest of judgment, from which our statute, Section 1018, Revised Statutes 1929, specifically allows an appeal because it is the only appealable judgment or order appearing in the record. The remaining part of the judgment in favor of the chauffeur, the employee of the other defendants, is at most merely interlocutory. It is not a final judgment from which an appeal would lie because it does not dispose of all parties and all issues. [Ford v. Ford (Mo.), 24 S.W.2d 990, and cases cited; Secs. 1018, 1070 and 1077, R. S. 1929.] We must, therefore, determine what is the question for decision on this appeal from the order in arrest of judgment.

Since our statute only recognizes a motion in arrest of judgment without defining it, the character of such a motion must be determined by the common law. [State ex rel. Conant v. Trimble, 311 Mo. 128, 277 S.W. 916.] The purpose of a motion in arrest of judgment is to prevent entry of judgment on the verdict where, because of some defect in the record proper, plaintiff is not entitled to the judgment of the court, although there has been a verdict in his favor. [15 R. C. L. 682, sec. 134; Span v. Jackson-Walker Coal & Mining Co., 322 Mo. 158, 16 S.W.2d 190; State ex rel. Conant v. Trimble, 311 Mo. 128, 277 S.W. 916; Rodgers v. Western Home Town Mutual Fire Insurance Co., 186 Mo. 248, 85 S.W. 369; State ex rel. Bond v. Fisher, 230 Mo. 325, 130 S.W. 35, Ann. Cas. 1912A, 970; Slocum v. New York Life Insurance Co., 228 U.S. 364, 33 S.Ct. 523, l. c. 530, 57 L.Ed. 879.] The defect in the record proper which prevents a judgment against the two defendants, here sought to be held upon the principle of respondeat superior, is that the verdict, itself, is not a basis for a judgment against them under the pleadings herein because it shows that the jury found the facts upon which their liability must depend in their favor, namely: That their employee was not negligent. Upon such a verdict, it has been held proper to enter a judgment against the plaintiff and in favor of the employer. [Doremus v. Root (Wash.), 54 L. R. A. 649, and note; for Missouri cases and other authorities see McGinnis v. C., R. I. & P. Railroad Co., 200 Mo. 347, 98 S.W. 590, 9 L. R. A. (N. S.) 880, 118 Am. St. Rep. 661, 9 Ann. Cas. 656; Whiteaker v. C., R. I. & P. Railroad Co., 252 Mo. 438, l. c. 450, 160 S.W. 1009; Brunk v. Hamilton-Brown Shoe Co., 334 Mo. 517, 66 S.W.2d 903; Michely v. Mississippi Valley Structural Steel Co., 221 Mo.App. 205, 299 S.W. 830; 9 Ann. Cas. 656, note; 54 L. R. A. 649, note; 25 A. L. R. 652, note; 75 A. L. R. 1189, note; 39 C. J. 1367, sec. 1602; 18 R. C. L. 776, sec. 236; see, also, 15 R. C. L. 1026, sec. 501, and 31 A. L. R. 188, note.]

Plaintiff asks us to "either order the original judgment reinstated against the defendants, Oberman Manufacturing Company and D. M. Oberman, or remand the case for a new trial against all of the defendants." We cannot, on this appeal from the order in arrest, do either. Originally, at common law an unconditional order sustaining a motion in arrest ended the case, no further judgment could be entered each party paid his own costs, and the plaintiff was at liberty to proceed de novo in a new action. [3 Blackstone's Commentaries (Lewis Ed.) 393; State ex rel. Bond v. Fisher, 230 Mo. 325, 130 S.W. 35, Ann. Cas. 1912A, 975; 2 Enc. Pleading & Practice, 820; 34 C. J. 44, sec. 174; 15 R. C. L. 686, sec. 137.] If the court thought the plaintiff should have another trial in the same case, it could make a conditional order of arrest and award a venire facias de novo, "in which case the order in arrest would not constitute a bar to the entry of a final judgment." [State ex rel. Bond v. Fisher, supra.] However, while there was some conflict of authority about the matter, the practice grew up of allowing the plaintiff to test the action of the court by moving "for a judgment against himself, which will be ordered as a matter of course, upon which he may bring his writ of error." [2 Enc. of Pleading & Practice, 822; 34 C. J. 44, sec. 174; Horne v. Barney (N. Y.), 19 Johns. 247 (he could compel entry of judgment by mandamus); Fish v. Weatherwax, 2 Johns. Cas. 215; Garesche v. Emerson, 31 Mo. 258; Gilstrap v. Felts, 50 Mo. 431; Bowie v. Kansas City, 51 Mo. 459; State ex rel. Merrill v. Burns, 66 Mo. 227.] Our statute (Sec. 1006, R. S. 1929) provides that, after arrest of judgment, amendment may be permitted, "and the cause shall again proceed according to the practice of the court." This would undoubtedly be true even though the order in arrest is unconditional. The course to be followed after arrest of judgment depends upon the nature of the defect for which the judgment is arrested. An order sustaining a motion in arrest of judgment does not now necessarily result in a new trial. [State ex rel. Bond v. Fisher, 230 Mo. 325, 130 S.W. 35; Stid v. Mo. Pac. Ry. Co., 211 Mo. 411, 109 S.W. 663.] It is, however, proper to award a...