United States Fidelity & Guaranty Co. v. Calvin

• Decision Date: 20 May 1929
• Docket Number: No. 16630.,16630.
• Citation: 17 S.W.2d 675
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. CALVIN.
• Court: Missouri Court of Appeals

17 S.W.2d 675

UNITED STATES FIDELITY & GUARANTY CO. v. CALVIN.

No. 16630.

Kansas City Court of Appeals. Missouri.

May 20, 1929.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Action by the United States Fidelity & Guaranty Company against W. W. Calvin. From an order and judgment after remand of case from appellant court overruling plaintiff's motion for entry of judgment and a motion for rehearing, plaintiff appeals. Appeal dismissed.

See, also, 7 S.W.(2d) 732.

Inghram D. Hook and Paul C. Sprinkle, both of Kansas City, for appellant.

Harris Robinson and Bert S. Kimbrell, both of Kansas City, for respondent.

LEE, C.

This case arises out of an action by plaintiff to recover from defendant, as surety on an indemnity bond given to secure a replevin bond, the amount paid out by plaintiff as bondsman thereon. The plaintiff in the original replevin suit first gave a $2,000 bond, with the present plaintiff, United States Fidelity & Guaranty Company, as surety, to whom the replevin plaintiff gave an indemnity bond, with the present defendant Calvin as surety thereon. Later the replevin plaintiff was required to give an additional $2,000 bond which the present plaintiff signed as bondsman, but for which Calvin refused to sign as surety on an indemnity bond. There was final judgment for the replevin defendant, for $3,000 damages, which the guaranty company, as bondsman, paid, and then sued the present defendant, Calvin, as surety on the indemnity bond.

At the trial of this case in the circuit court plaintiff at the close filed its motion for a directed verdict, which was overruled. Defendant then filed his demurrer to the evidence, which the court sustained; whereupon plaintiff was permitted to take an involuntary nonsuit with leave to move to set the same aside. Upon the court's refusal, on motion, to set same aside, plaintiff brought its appeal to this court, whose decision thereon is reported in 7 S.W.(2d) 732, entered on June 11, 1928, in an opinion by Williams, C., which opinion is recited in full in the abstract of the record in this appeal.

In that opinion the court quotes the testimony of defendant Calvin, which it states was not sufficient to constitute a defense to the action; and then holds that the trial court erred in sustaining defendant's demurrer to the evidence. In the course of the opinion the court also says: "Both bonds being good and equal, the whole amount should not be taken from the first bond, and for that reason the court did not err in refusing to direct a verdict for plaintiff." The closing paragraph of the opinion states: "We think the court should not have directed a verdict for plaintiff for the full amount, but should have apportioned recovery between the two bonds. The judgment is reversed and the cause remanded." The opinion also decided that the giving of the second bond did not release the first one.

This court's mandate, in the usual form, adjudges that the judgment "be reversed, annulled and for naught held and esteemed, and that said appellant be restored to all things lost by reason of the said judgment," and that the cause be remanded "for further proceedings to be had therein, in accordance with the opinion of this court herein delivered."

Upon receipt of this mandate in the circuit court, plaintiff filed his motion praying that court to enter judgment against defendant in the sum of $1,500, and interest, which it is to be noted is one-half of the amount paid out by the guaranty company. This motion was overruled in the circuit court on July 28, 1928, and a motion for rehearing of same was overruled three days later, to which plaintiff saved its exceptions. The present appeal is from this "order and judgment" of the court.

The only assignment of error is the refusal of the circuit court to sustain plaintiff's motion for judgment, based upon this court's opinion and mandate.

Respondent contends that the trial court's action in overruling plaintiff's motion for judgment on the mandate was not a final judgment, and that an appeal therefrom does not lie under the statute, R. S. Mo. 1919, § 1469, and moves that this appeal be dismissed.

Appellant contends that the trial court's action is in effect an order granting a new trial; that this court's opinion was rendered upon an assignment of...