Wollman v. Loewen

• Decision Date: 13 December 1904
• Parties: WOLLMAN v. LOEWEN.
• Court: Missouri Court of Appeals

84 S.W. 166

108 Mo. App. 581

WOLLMAN v. LOEWEN.

St. Louis Court of Appeals. Missouri.

December 13, 1904.

APPEAL — REVERSAL — JOINT DEFENDANTS — EFFECT — RETRIAL — SCOPE — SECOND APPEAL — QUESTIONS REVIEWABLE.

1. Plaintiff sued defendants on two notes, in four counts. The first two counts charged both defendants as makers, and the third and fourth charged defendant B. as maker and defendant L. as indorser. B. made default, and judgment was entered, after trial, against both defendants as makers, on the first two counts. L. then alone appealed, and the judgment was reversed, without restriction, and a new trial ordered. Held, that under Rev. St. 1899, § 773, providing that, when there are several defendants in a suit, only one final judgment shall be given in the action, the reversal of the first judgment vacated the same in toto as against both defendants, and the court on retrial had power to render a new judgment against them under the third and fourth counts of the complaint.

2. In an action based on a complaint containing four counts, a judgment was entered by mistake on the first and third counts for plaintiff, but was subsequently amended by an order nunc pro tunc so as to be on the first and second counts. The judgment was reversed, without consideration of an assignment of error to such amendment. Held, on a second trial, the objection to such amendment cannot be considered, where counsel for defendant contends that the former judgment was a bar to a further trial on said third and fourth counts, such positions being inconsistent.

Appeal from St. Louis Circuit Court; R. M. Foster, Judge.

Action by Morton Wollman against David Loewen. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Lyon & Swarts, for appellant. Boyle, Priest & Lehman, for respondent.

Statement.

GOODE, J.

As this cause was here on a previous appeal, we refer to the report of the decision then given for a full recital of the facts. 96 Mo. App. 299, 70 S. W. 253. Such other facts as require attention on this appeal are fairly recited in the respondent's brief, and in the main we adopt that recital.

This was a suit on two promissory notes each for $1,250, signed on the face by defendant Bienenstock, and on the back by Loewen, the one payable to Morton Wollman, and the other payable to Henry Wollman and indorsed to Morton Wollman. There were four counts in the petition, two on each note. The first and second counts charged Loewen as maker; the third and fourth charged him as indorser. Bienenstock made default. On the first trial, which was to a jury, the circuit court was of opinion that Loewen was a joint maker with Bienenstock, and intended to direct a verdict against him accordingly. By inadvertence and mistake it directed a verdict for plaintiff on the first and third counts against Loewen, and for Loewen on the second and fourth counts, and judgment was entered accordingly.

Loewen moved for a new trial as to the first and third counts, which motion was continued to the next term for hearing and determination. The mistake of the court then becoming apparent, the judgment entry was corrected on plaintiff's motion, and entered upon the first and second counts. Loewen then appealed to this court. The case was heard here, and reversed upon the ground that Loewen was not a maker, but an indorser, and, the record not showing evidence of presentment for payment, protest, etc., was remanded for new trial. On the second trial a jury was waived. The evidence showed conclusively the execution of the notes upon good consideration, and that the proper steps had been taken to charge Loewen as indorser. Judgment was accordingly entered against the defendants upon the third and fourth counts of the petition.

The case is again appealed here by Loewen, whose chief contention is that the first judgment in the case in his favor on the third and fourth counts stands unaffected by the appeal, and is a bar to the plaintiff's claim. The former opinion of this court concludes, "The judgment is reversed and the cause remanded." The judgment entry here reads as follows: "Now again come the parties aforesaid, by their respective attorneys, and the court, being now sufficiently advised of and concerning the premises, doth consider and adjudge that the judgment rendered herein by the said circuit court of the city of St. Louis be reversed, annulled, and for naught held and esteemed; that the said appellants be restored to all things which they have lost by reason of the said judgment; that the said cause be remanded to the aforesaid circuit court of the city of St. Louis for further proceedings to be held therein in conformity with the opinion of this court herein delivered, etc."

Opinion.

It is insisted by Loewen's counsel that the reversal of the first judgment by this court and the return of the case for another trial did not empower the circuit court to retry the issues joined on the third and fourth counts of the petition, but that final judgment should have been entered in favor of Loewen on those counts, as well as on the other two. If this is true, what reason was there for directing a retrial? We decided on the previous appeal that Loewen was conclusively shown to have signed the notes in suit as an indorser, and not as a maker. He was declared against as a maker in the first and second counts of the petition, and our ruling closed the question of liability on those counts, unless different evidence could be produced. Hence, as no new evidence touching them was presented, Loewen was entitled to judgment on them. Regarding his liability as indorser, in which capacity he was declared against in the third and fourth counts, we decided the evidence proved indisputably he was an indorser, but contained no proof that one of the steps necessary to charge him as such had been taken, namely, that notice was given to him of Bienenstock's failure to pay the notes at maturity, The cause was remanded for retrial in order that Loewen's liability as indorser might be established by supplying the lacking evidence, if it existed. The mandate of this court is clear; but if it were not, the opinion would disclose the reason why a new trial was ordered. Gamble v. Gibson, 10 Mo. App. 327, 335; West v. Brashear, 14 Pet. 51, 10 L. Ed. 350. In the opinion, among other things, we said: "The evidence in this case shows conclusively that the relation which Loewen assumed to the notes in suit was that of indorser, and that he reserved to himself the protection of the safeguards of demand for payment at maturity and notice of dishonor, which the law accords to indorsers. The letter of the Wollmans requested that he waive protest and notice, but this he declined to do, and they accepted him as an indorser without such waiver, saying they would put the notes in the Continental Bank for prompt protest and notice if they were not paid when due. It is therefore plain that they did not consider Loewen a joint maker, and this disposes of the question of his liability as such. * * * Loewen was undoubtedly proved to be an indorser, and was also proven to have become such on a sufficient consideration; his liability, therefore, turns on whether steps were taken to hold him as such after the principal signer had made default."

Those passages in the former opinion render it plain why the cause was returned for a second trial. But appellant's counsel argue that as the first verdict and judgment were against their client only on the first and second counts, this court's order of reversal affected the judgment that far only, and left it intact on the third and fourth counts, on which the judgment was in his favor and unappealed from by Wollman. The latter had no reason for appealing, as he got judgment on both notes for their full amounts. Each promissory note was declared on in two counts, to meet the distinct capacities in which Loewen was thought to be liable; but these counts were based on one subject-matter, not two. The reversal of the judgment, without qualifying or limiting the scope of the order of reversal, and the return of the cause to be again tried, reversed the entire judgment, and opened the case for a retrial of the entire controversy. If the judgment of this court is read in connection with the opinion that accompanied it, no other conclusion as to the purpose and result of our decision is possible. In causes where there have been separate verdicts or findings on distinct causes of action, appellate tribunals may, and, to save costs and expedite justice, often do, reverse the judgment for an error committed in trying the issues arising on one count, and remand the cause with a direction to retry those issues and let the verdicts on the other counts stand. Hurck v. Erskine, 50 Mo. 116; Chouteau v. Allen, 70 Mo. 290; Gamble v. Gibson, 59 Mo. 585, 10 Mo. App. 327, 83 Mo. 290; Crowe v. Peters, 63 Mo. 429; Needles v. Burk, 98 Mo. 474, 11 S. W. 1008; Oberbeck v. Meyer, 59 Mo. App. 289; Roberts v. Central Lead Co., 95 Mo. App. 581, 69 S. W. 630; Hartman v. Lumber Co., 96 Mo. App. 288, 70 S. W. 157. This is done when it is possible to retry nothing but the cause of action erroneously tried at first, without prejudice to the rights of the parties. And, if a trial court is directed to follow this course, we understand that, according to regular procedure in legal actions, the judgment on the undisturbed findings should be withheld until a verdict is returned on the issues to be retried, and then be rendered to cover that finding as well as the others, for there can be but one final judgment in a cause. Rev. St. 1899, § 773; Sater v. Hunt, 75 Mo. App. 468. A contention like the one raised here was dealt with by the Supreme Court in Needles v. Burk, 98 Mo. 474, 11 S. W. 1008. There the petition contained two counts, and the first trial of the cause resulted in a verdict for the plaintiff on both. An appeal was taken, and the...