Tooker v. Mo. Power & Light Co.
| Decision Date | 05 March 1935 |
| Docket Number | No. 33371.,33371. |
| Citation | 80 S.W.2d 691 |
| Court | Missouri Supreme Court |
| Parties | JOHN EDWARD TOOKER, ERMA PEASE and EMMA TOOKER ANTONE v. MISSOURI POWER & LIGHT COMPANY, a Corporation, Appellants. |
Appeal from Linn Circuit Court. — Hon. Paul Van Osdol, Judge.
REVERSED.
Thomas P. Burns for appellant.
The court erred in finding for the plaintiffs because the law does not allow the splitting of a cause of action, and because the matter had been adjudicated between the parties hereto. Fansler v. Sedalia, 189 Mo. App. 462; Kent v. Trenton, 48 S.W. (2d) 576; Lincoln Trust Co. v. Nathan, 122 Mo. App. 327; Smith v. Sedalia, 244 Mo. 122; Malvin v. Hoffman, 235 S.W. 114; State v. Knehans, 31 S.W. (2d) 228; Lucky v. Brookfield, 167 Mo. App. 169; James v. City of Kansas, 83 Mo. 570; Degeofroy v. Ry. Co., 179 Mo. 721; Bollinger v. Am. Asphalt Roof Co., 19 S.W. (2d) 547; Smith v. Sedalia, 152 Mo. 284; Smith v. Sedalia, 182 Mo. 1; Doyle v. Kansas City, 113 Mo. 287; Kellogg v. Kirksville, 132 Mo. App. 526; Shelley v. Ozark Pipe Line Co., 37 S.W. (2d) 520; Kansas City v. Southern Surety Co., 51 S.W. (2d) 224. The plaintiffs could not acquire the right to split their cause of action by voluntarily dismissing the first count of their petition in the original suit. They were bound by what they could have pleaded in that suit. Melvin v. Hoffman, 235 S.W. 114; James v. City of Kansas, 83 Mo. 570; Lincoln Trust Co. v. Nathan, 122 Mo. App. 327. The plaintiffs elected to sue for damages. They prosecuted that suit to a conclusion and they received the damages and the defendant paid the costs. They are now precluded from bringing another suit involving the same alleged trespass by having elected to sue for damages and having prosecuted said suit to a successful conclusion. Tower v. Compton-Hill Imp. Co., 192 Mo. 379, 91 S.W. 104; Boogher v. Frazier, 99 Mo. 325, 12 S.W. 885; Nanson v. Jacob, 93 Mo. 331, 6 S.W. 246; Welsh v. Carder, 95 Mo. App. 41, 68 S.W. 580; Bowman v. Lickey, 86 Mo. App. 47; Boonville Commercial Bank v. Boonville Central Natl. Bank, 203 S.W. 662; Smoot v. Judd, 184 Mo. 508, 83 S.W. 481; Ottumwa Natl. Bank v. Totten, 94 Mo. App. 596, 68 S.W. 386; City Ice, Light, Power & Storage Co. v. Saint Mary's Machine Co., 170 Mo. App. 224, 156 S.W. 83; 20 C.J., secs. 9, 10; Deer v. Deer, 180 S.W. 572.
H.K. West for respondents.
Action in ejectment for possession of a strip of land described as fifteen acres off the north side of the north half of the southeast quarter of Section 3, Township 57, Range 20, in Linn County, and for damages caused by defendant by its alleged wrongful entry, by cutting down trees and by erecting poles and wires for the transmission of electricity. The alleged wrongful entry and other acts complained of are alleged in the petition to have been done on or about the ____ day of November, 1930. The strip of land in question is bounded on the north by a public highway and it appears that defendant's transmission line follows the highway, but that five of its poles are inside the fence and upon the premises in question and that in addition there is "one stay wire running into the field."
The defense was that defendant had acquired a right-of-way upon the land for the purpose of maintaining thereon its transmission line and had paid the damages for the appropriation thereof by payment of a judgment obtained against it by these plaintiffs in a former action. The case was tried to the court without a jury, resulting in a judgment for plaintiffs for possession and one dollar damages. The effect of the judgment is to deny defendant's claim of ownership of an easement or right of way. The appeal was granted to the Kansas City Court of Appeals, which court transferred the case to this court on the ground that title to real estate is involved, giving this court appellate jurisdiction. We think the case was properly transferred. See Novinger v. Shoop, 185 Mo. App. 526, 172 S.W. 616, transferred by Court of Appeals and jurisdiction taken here, Novinger v. Shoop (Mo.), 201 S.W. 64.
[1] I. We are first confronted with a motion filed by respondent to dismiss the appeal for failure of appellant to give an appeal bond conditioned as provided by Section 1383, Revised Statutes 1929 (2 Mo. Stat. Ann., p. 1601), which reads: "No appeal shall be allowed nor supersedeas granted on a writ of error in favor of the defendant, unless the recognizance be in a sum and with security sufficient to secure the payment of all damages and accruing rents and profits, and with condition to stay waste, in addition to the conditions now require by law in such cases."
It appears from a certified copy of the appeal bond herein, filed with respondent's motion, that such bond was conditioned only as provided by Section 1022, Revised Statutes 1929 (2 Mo. Stat. Ann., p. 1299), prescribing the conditions of appeal bonds generally, and did not contain the additional conditions required by Section 1383; also it is shown that the bond was not filed until more than ten days after final adjournment of the term at which the appeal was taken. The appeal must, therefore, be treated as having been granted without the filing of the statutory bond. It does not appear what order if any, the court made relative to the filing of an appeal bond at the time of granting the appeal. Appellant's abstract of record recites that defendant filed its application and affidavit for appeal which application "was by the court found sufficient and said appeal was duly granted by said circuit court to the Kansas City Court of Appeals;" a recital that, absent a showing to the contrary, would be deemed sufficient under present court rules. Respondent contends that the giving of an appeal bond conditioned as provided by said Section 1383 is jurisdictional, that is — that it is an absolute condition to the right of appeal by a losing defendant in an ejectment suit and that unless such bond has been timely filed the appellate court is without jurisdiction of the appeal. Appellant has not favored us with a brief on this point.
We do not so interpret the statute in question. It is the policy of the law, as evidenced by statutory provisions on the subject, to allow appeals from final judgments to the end that the losing party may have a review of alleged errors committed to his prejudice by the trial court. It is evidently the legislative belief that the ends of justice are thus best subserved. The right of appeal is statutory, but, no doubt having in mind this salutary legislative purpose, this court said in Stid v. Mo. Pac. Ry. Co., 211 Mo. 411, 418, 109 S.W. 663, that "an appeal being the creature of the statute, the object to be subserved being to get at the very right of the cause, statutes pertaining to procedure are entitled to a liberal construction and courts should not be prone to plant thorns in the path of appeal." That was said in holding that a judgment might be treated as final for the purpose of an appeal, though a motion in arrest of judgment had not been passed upon. In Hurley v. Universal Clay Co., 278 Mo. 408, 415, 213 S.W. 28, it is said that the right to an appeal, though purely statutory, is remedial and therefore to be liberally construed, citing the Stid case. [See, also, O'Malley v. Cont. L. Ins. Co., 335 Mo. 1115, 75 S.W. (2d) 837, 839.] In construing statutes the courts seek to arrive at and enforce the intention of the Legislature. "In construing statutory provisions the object and purpose which induce their enactment and the mischief they are intended to prevent must be given effect (Spitler v. Young, 63 Mo. 42), as must also the results and consequences of a proposed interpretation." (Citing cases.) [Straughan v. Meyers, 268 Mo. 580, 187 S.W. 1159, 1163, (11-12).]
In Bowers v. Missouri Mut. Assn., 333 Mo. 492, 505, 62 S.W. (2d) 1058, 1063 (3-7), we said that, "In arriving at the legislative intent doubtful words of a statute may be enlarged or restricted in their meaning to conform to the intent of the lawmakers, when manifested by the aid of sound principles of interpretation" (citing cases), and, quoting from State ex rel. Asotsky v. Regan, 317 Mo. 1216, 298 S.W. 747, 749, "while we have no right to construe a law by our view of its expediency, we can take that feature into consideration in attempting to ascertain what was in the legislative mind."
The statute in question is not very clearly worded. It appears intended to apply only to the losing defendant in an ejectment suit who is in possession. That leaves the plaintiff, if he loses, free to seek review of the cause on the merits by appeal, under the general code, as in any other case. If the statute was intended to deny to the losing defendant a similar right of review, why the discrimination against him and in favor of the plaintiff? Under the general Code, Section 1018, Revised Statutes 1929 (2 Mo. Stat. Ann., p. 1286), "Any party to a suit aggrieved by any judgment of any circuit court in any civil cause from which an appeal is not prohibited by the Constitution, may take his appeal ... from the final judgment in the case... ." The recognizance required by the general code, Section 1022, supra, is designed and operates only to stay execution while the appeal is pending. Failure to file it or to have it approved does not affect the jurisdiction of the appellate court. [New York Store Merc. Co. v. Thurmond, 186 Mo. 410, 428, 85 S.W. 333; Schultz v. Jones, 223 Mo. App. 142, 9 S.W. (2d) 248, 251.] Ejectment may present an issue of title to the land involved, as in the instant case. What reason can there be for allowing to a losing plaintiff a review on appeal of such issue, or any issue affecting the merits, without bond, and denying to a losing defendant a similar right? We can think of none, and we do not believe the Legislature so intended. The reason for requiring that the recognizance, when the appeal is taken by the defendant in possession, should contain the...
To continue reading
Request your trial