Wonderly v. Haynes

• Decision Date: 08 December 1914
• Docket Number: No. 13802.,13802.
• Citation: 171 S.W. 564,186 Mo. App. 75
• Parties: WONDERLY v. HAYNES.
• Court: Missouri Court of Appeals

171 S.W. 564

186 Mo. A. 75

WONDERLY v. HAYNES.

No. 13802.

St. Louis Court of Appeals. Missouri.

December 8, 1914.

Rehearing Denied December 22, 1914.

1. APPEAL AND ERROR (§ 528) — QUESTIONS REVIEWABLE — MOTION FOR NEW TRIAL — BILL OF EXCEPTIONS.

A motion for new trial is not a part of the record on appeal, unless made a part of the bill of exceptions.

2. APPEAL AND ERROR (§ 933) — REVIEW — PRESUMPTIONS — GRANTING OF NEW TRIAL — EFFECT.

Where the court, compelling plaintiff, suing on notes, to elect on which of two counts in the petition he would proceed, granted a new trial after verdict for defendant on the ground of error in requiring an election, and on a subsequent trial, without formal restoration of the other count on which plaintiff on the former trial suffered an involuntary nonsuit, a judgment was rendered for defendant, it must be presumed on appeal that the subsequent trial involved issues raised by both counts.

3. NEW TRIAL (§ 163) — MOTION — ORDER — EFFECT.

An order sustaining a motion for new trial ordinarily leaves the case as though no trial had taken place, except when the petition contains two or more counts, and the verdict is for plaintiff on one or more and for defendant on one or more, in which case the granting of a new trial to one of the parties on a count ruled adversely to him does not of itself reopen other counts well tried and decided in his favor.

Error to St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by Charles P. Wonderly against Louis C. Haynes. There was a judgment for defendant, and plaintiff brings error. Affirmed.

Christy M. Farrar, of St. Louis, for plaintiff in error. Abbott, Edwards & Wilson, of St. Louis, for defendant in error.

NORTONI, J.

Plaintiff in error, who is plaintiff also in the case, sued out this writ of error on May 19, 1909, to the end of reversing a judgment in favor of defendant in the case and defendant in error on both counts of the petition. There is no bill of exceptions before us, and the record alone is here.

It appears from the record that plaintiff instituted the suit against defendant by filing his petition in two counts in the circuit court and causing summons to issue thereon. The first count of the petition declared upon a promissory note of $2,500, and the second count declared upon five separate promissory notes, which, it is said, all represented but one cause of action. On November 23, 1909, defendant filed his answer to both counts of the petition, and on November 27, 1909, plaintiff replied thereto. Thereafter, on April 6, 1910, the cause was tried in the circuit court. At the conclusion of the trial, before submitting the issue to the jury, the court sustained defendant's motion to that effect and required plaintiff to elect upon which count of the petition he would further proceed. Upon sustaining this motion, plaintiff elected to stand upon his first count, and thereupon suffered an involuntary nonsuit as to the second count and dismissed it. The jury returned a verdict in favor of defendant on the first count of the petition, and thereafter, in due time, plaintiff filed his motion for a new trial, alleging that the court erred in requiring him to elect on which count of the petition he would proceed, and thus forcing him to an involuntary nonsuit on the second count. On May 16, 1910, the court sustained plaintiff's motion for a new trial on the ground above stated (that is, that it erred in requiring plaintiff to elect and forcing him to an involuntary nonsuit on the second count of his petition), set the verdict of the jury in favor of defendant on the first count aside, and ordered a new trial. Thereafter, on May 27, 1910, defendant appealed from such order of the court, sustaining plaintiff's motion for a new trial, to this court, and the order so made was sustained here. In other words, this court affirmed the order of the trial court granting plaintiff a new trial for the error above stated, and remanded the cause for further proceedings therein, as will appear by reference to the case between these same parties. See Wonderly v. Haynes, 159 Mo. App. 122, 139 S. W. 813.

The record before us recites the facts above stated, but omits to disclose that plaintiff filed a motion requesting the court to reinstate the second count of...