Strottman v. St. Louis, Iron Mountain & Southern Railway Company
| Decision Date | 13 May 1910 |
| Citation | 128 S.W. 187,228 Mo. 154 |
| Parties | MAGDALENA STROTTMAN, Appellant, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Geo. C. Hitchcock Judge.
Affirmed.
Block & Sullivan for appellant.
(1) Under the present statute, the prior reversal saves the action from the special Statute of Limitations applicable to this class of causes. Clark v. Railroad, 219 Mo 524. (2) Counsel for respondent contend that the judgment of reversal in the former case is res adjudicata in this. A few words on the subject from our side of the controversy may not be amiss. A decision of this court, as of any other court of last resort, may be controlling from three possible aspects First, as res adjudicata, or a final judgment of a court of competent jurisdiction on the merits of a controversy second, as "the law of the case;" and, third, as "the law of the land," or a controlling precedent. As "the law of the land," the prior opinion is of course to be followed or overruled according as the court shall be satisfied with its pronouncements, or otherwise. As "the law of the case," the result of the adjudications is that if error was committed, the fact that the question again arises between the same parties litigant does not at all interfere with the correction of the error. Regardless of its merits, however, counsel bring it forward as a final judgment which bars all further controversy. This be it known, must deal with the judgment and not the opinion of the court. It is the opinion of the court, of course, which is concerned when the question is "the law of the case" or "the law of the land;" but it is the judgment of the court, and not the opinion which led to the judgment, which must control when the question is res adjudicata. The question, therefore, is whether a judgment of reversal simply is a final judgment which will bar another action. The distinction to be drawn here is between those judgments which put an end to the case merely, and those judgments which put an end both to the case and to the controversy involved. To constitute res adjudicata, a judgment must end not only the case, but the controversy involved as well. For instance, a dismissal for want of prosecution, for lack of security for costs, for lack of proper venue, or for want of jurisdiction puts an end to the case, but is without effect on the controversy. What of a judgment of reversal? The decisions bearing directly on the question are these: This court reversed, without remanding, Robinson v. Musser, 73 Mo. 153, a causa celebris, and pronounced judgment against the plaintiff for all costs of the cause. Musser v. Howard, 23 Mo.App. 495, was an action on the cost bond in the Robinson case. It is manifest that a final judgment on the controversy was not essential to a recovery on the cost bond; but any final termination of the particular case would suffice, whether disposing of the merit of the controversy or otherwise. Thus, a nonsuit or dismissal leaving the merits untouched, would have been a final judgment so far as concerns an action on the cost bond. In the course of the opinion of the Kansas City Court of Appeals in that case, written by Hall, J., is found a dictum that a judgment of reversal without remanding would bar another action, but the question was not before him for consideration. Zurfluh v. People's Co., 46 Mo.App. 643, is the opinion of the St. Louis Court of Appeals, then composed of Thompson, Rombauer and Biggs, JJ. These judges were unanimously of the view that a reversal without remanding is not an adjudication of the merits, but is equivalent to a nonsuit by the plaintiff. The same ruling was repeated by that court in Berning v. Medart, 56 Mo.App. 450, in an opinion by Rombauer, J., concurred in by Bond and Biggs, JJ. The question came squarely before the Kansas City Court of Appeals for adjudication in Stevens Co. v. Kansas Co., 72 Mo.App. 258. That court overruled the dictum in Musser v. Howard, supra, and announced the same conclusion as that arrived at by the sister court of appeals. In Young v. Thrasher, 123 Mo. 312, was involved the effect of a judgment reversing and remanding the cause to the trial court with directions to enter judgment. In the course of the opinion, Macfarlane, J., referred with approval to the case of Smith v. Adams, 130 U.S. 177. In that case, Mr. Justice Field, writing the opinion of the Supreme Court of the United States, said this, pertinent to the subject here being investigated: "A judgment of reversal is only final when it also enters or directs the entry of a judgment which disposes of the case." In Stone v. United Workmen, 117 Mo.App. 297, the Kansas City Court of Appeals reaffirmed the rule declared in Stevens Co. v. Kansas, supra, the opinion being written by Broaddus, J., and concurred in by Ellison and Johnson, JJ. Notwithstanding the laborious efforts of counsel to distinguish the case of Donnell v. Wright, 199 Mo. 312, that adjudication, in our judgment, is sufficient to dispose of this question contrary to the position taken by respondent. Donnell v. Wright, 147 Mo. 646, was reversed without remanding. After that transpired, an effort was made to proceed with the case in the court below, and that effort reached this court by appeal and was disposed of in 199 Mo. 312. It was held that the appeal of the case put an end to jurisdiction of the trial court and that its jurisdiction to proceed could only be revived by an order remanding the case from this court. So far, however, from holding a reversal without remanding to be a final judgment, this court expressly held the other way and approved the opinion of the Kansas City Court of Appeals to that effect. As said in that case, this court may, first, affirm; second, reverse; third, reverse and remand for a new trial; fourth, reverse with directions to enter a particular judgment; and, fifth, enter such judgment here as the trial court should have entered. Either of these judgments may be accompanied by an opinion on the merits of the controversy. If that controversy, or any other similar one, should again come before the court, that opinion would be accepted as the law unless overruled; but whether these various judgments are accompanied with an opinion on the merits or not has no weight in determining the proper effect to be attributed to the judgment pronounced. It is to be observed that the statute has expressly conferred upon the court the power to "reverse," and also to enter such judgment as the court below should have entered. If, as is contended here, a reversal simply is equivalent to a final judgment on the merits in behalf of the defendant, then the statute is guilty of tautology in conferring power upon the court to reverse, and also an independent power to enter such judgment as the circuit court should have entered. If this interpretation should be adopted, then there was no occasion for the use of the word "reverse" in the statute; since all that it would then signify is included within the direction that such judgment may be entered as the court below should have given. Moreover, it certainly is true that the law-makers have the right to say what shall be the effect of a judgment of reversal in this court, and if that body has said that such a judgment shall leave the controversy open for further litigation, that is an end of this discussion. Section 4285, R. S. 1899, has been the law in this State for a long time. Among other things it provides that if the plaintiff begin his action within the time fixed by the proper Statute of Limitations and recover a judgment and "the same be reversed" he may begin a new action within one year after the judgment is "reversed." Note that the language of this statute is not "if the judgment be reversed and the cause remanded," but "if the judgment be reversed" simply. A provision for a new action in case a judgment is reversed and the cause remanded would be superfluous, because under such conditions the plaintiff can proceed with his controversy in the same case without the consent of this statute and without any hindrance from the Statute of Limitations. A recent Legislature has extended this statute in the same language to actions of the character here being investigated. R. S. 1899, sec. 2868 (Laws 1905, p. 138). In passing on the first statute above quoted, Norton, J., delivering the judgment of this court in Bryant v. Fudge, 63 Mo. 491, said: "It would seem to follow from the above that on the arrest or reversal of the judgment rendered in the suit of Dale against the defendant, another suit might have been brought on the same cause of action within one year after the arrest or reversal even although ten years had elapsed." In Estes v. Fry, 166 Mo. 81, Marshall, J., delivering the judgment of the court, said, concerning the application of sec. 4285, R. S. 1899, this: "The one year here allowed means one year after the judgment is entered for a nonsuit, in arrest, or for a reversal, and this is true, whether such judgment is entered in the trial or appellate court." This language was quoted with express approval by Woodson, J., delivering the opinion in Mason v. Kansas Co. The court must determine that these two statutes are entirely meaningless in order to follow counsel in the conclusion that a judgment of reversal without more constitutes a final judgment on the merits of the controversy. It is well settled that the judgment of an appellate court, not final in form, is not res adjudicata, even though accompanied by an opinion on the ultimate merit of the controversy. This principle is illustrated by Hennessy v. Bavarian Co., 63 Mo.App. 111, 145 Mo. 109. In that case a mother sought to recover damages for the death of her minor child. ...
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