Advance Thresher Co. v. Speak
151 S.W. 235
Mo. Ct. App.
1912
Check Treatment
ELLISON, J.

Plaintiff’s action is replevin whereby it seeks to recover a lot of personal property. Defendants had judgment in the circuit court. Plaintiff appealed. There is no bill of exceptions and we have only to ascertain whether the record proper discloses any legal cause for our interference.

The petition, answer, reply, verdict and judgment, composing the record proper, are set out in the transcript and we will confine our investigation to these. The petition is in replevin and plaintiff seeks to recover from defendants’ possession thirteen head of live stock, a wagon, harness, and one “Advance 26 horse power steam engine with hose,” with all appliances for plowing and harrowing, all of the value of $1040. Damages for the detention of the property, in the sum of $500, is also claimed.

The answer is a general denial and a counterclaim. In setting forth the ground of the counterclaim, defendants have stated the cause of the controversy. It appears that defendants bought, at the price of $2000, the steam engine of plaintiff largely on credit, executing their notes for the purchase money and giving a chattel mortgage on the engine and the other property, to secure their payment. That when they came to work it, they found it would not do practical plowing, and was-not worth to exceed $700. It is alleged in the answer that defendants had contracted for breaking sod for others, whereby they could have made a profit of $800, and that they could not do the work on account *473of the engine not working. It is also alleged that of the personal property mortgaged to plaintiff the sheriff took by the replevin writ the engine, and two of the horses valued at $200, and turned them over to plaintiff. Payments on the notes aggregating $858 are alleged. Finally it is alleged that defendants “are, otherwise damaged in the sum of $500.” The prayer o£ the answer is that the court order a return of the property; that defendants’ damages be ascertained, and that their notes be ordered surrendered.

The verdict was as follows: “We, the jury, find for the defendants and assess the amount due them at $735 dollars.” The judgment following the verdict as set out in the record was: “It is therefore considered and adjudged by the court that the defendants have and recover of and from the plaintiff the said sum of seven hundred thirty-five dollars ($735) so found and assessed by the jury to be due them, together with costs in this behalf laid out and expended, taxed at-dollars ($-) and that they have execution therefor.”

As we have stated, we have no guide as to what transpired in the trial court except what is shown by the record proper, which includes the verdict and judgment. [Bateson v. Clark, 37 Mo. 31; Lilly v. Menke, 126 Mo. 190, 212.]

As we understand defendants’ position, it is not claimed that the verdict is regular or proper, but that plaintiff having failed to complain by filing a motion in arrest, it cannot now be noticed on appeal. The rule that all matters constituting the record proper may be examined by an appellate court notwithstanding there is no bill of exceptions including a motion in arrest, has been so far modified as to require a motion in arrest for all immaterial errors not of a serious or fatal character. But unless the errors complained of are formal, minor or immaterial, they will be examined on appeal, though there is neither a motion *474nor bill of exceptions. [Sweet v. Maupin, 65 Mo. 65; McIntire v. McIntire, 80 Mo. 470; 473; State ex rel. v. Scott, 104 Mo. 26, 31; Land Co. v. Bretz, 125 Mo. 418, 423; State ex rel. v. Carroll, 101 Mo. App. 110; Nichols v. Lead & Zinc Co., 85 Mo. App. 584; Bank v. McMullen, 85 Mo. App. 142.]

It follows that if the errors in the verdict and judgment in controversy are of a material or fatal character, plaintiff is entitled to a reversal notwithstanding there was no motion or bill of exceptions. It is said in Roden v. Helm, 192 Mo. 71, 93, a case without a bill of exceptions: “That judgments and decrees must be responsive to the pleadings in this State is no longer an open question.” In Schneider v. Patton, 175 Mo. 684, 723, it is said that: “No principle is better settled than that, unless a judgment is responsive to the issues presented in the pleading’s it is erroneous.”. And in State v. Modlin, 197 Mo. 376, 379, that in considering the sufficiency of a verdict, “it must be borne in mind that it is well-settled law in Missouri that if the verdict, which is a part of the record, is not responsive to the issue, or is uncertain or indefinite, it is open for review on appeal or writ of error as a part of the record proper.” In State v. Rowe, 142 Mo. 439, 442, it is held that the verdict must be so responsive to the issues as to afford the party protection against the samé claim in another action. It is said in 1 Graham & Waterman on New Trials, 140, that: “If the jury find only part of the issue, judgment cannot be entered on the verdict. It is void for the whole, and a venire de novo will be awarded.” The authors then add a quotation from Lord Coke, that: “A verdict that finds part of the issue, and finding nothing for the residue, this is insufficient for the whole, because they have not tried the whole issue wherewith they are charged. As if an information of intrusion be brought against one, for intruding into a messuage and one hundred acres of land, upon the *475general issue, the jury .find against the defendant for. the land, hut say nothing for the house, this is insufficient for the whole, and so was it twice adjudged.” [Allison v. Darton, 24 Mo. 343; Pratt v. Rogers, 5 Mo. 51; Jones v. Snedecor, 3 Mo. 390; 3 Graham & Waterman on New Trials, 1384, 1390; 2 Thompson on Trials, Sec. 639; Patterson v. United States, 2 Wheat. 221; Lyon, Cobb & Co. v. Stewart & Campbell, 5 J. J. Marsh. 676.]

In view of these authorities it seems to he clear that the verdict under consideration is materially improper and insufficient. It leaves the case near as much undetermined as before the trial. It, and the judgment following, do not make it known whether the horses and engine, o.r either if them, which were taken from defendants and delivered to plaintiff by the sheriff, are to be considered the property of plaintiff or defendants. It is not known whether the notes remaining in plaintiff’s hands are to be considered as settled, or whether they are still due. The verdict is as though it were given in an action of assumpsit, or for general damages without any complications with other matters. So far as the record before us is concerned, may there not be future litigation over the title to the property? The verdict merely reads that the amount due defendants is $735'. Is that found as a general adjustment if all the issues, leaving the property as belonging to plaintiff, or is it for the damages, alone, claimed by defendants, or is it for part recovery back of $858 payments made on the notes?

We have been cited by defendants to several eases in which a reversal of judgments was refused because the verdict was not materially wrong and there was no motion in arrest, but none if them approach to‘the seriousness of this.

The judgment should be reversed and the cause remanded.

All concur.