Case v. Espenschied

188 Mo. 725 | Mo. | 1905

BRACE, P. J.

This is the second appeal in an action of replevin to recover a note for $6,000 and a deed of trust securing the payment thereof. On the former appeal a judgment in favor of the defendants was “reversed and the cause remanded to be proceeded with in accordance” with the opinion delivered therein, which is reported in 169 Mo. 215. The opinion and mandate having been filed in due course in the circuit court, the plaintiff filed the following motion in said cause, to-wit:

“Now comes the plaintiff and moves the court to render judgment herein, under the mandate and opinion of the Supreme Court of the State of Missouri herein, in favor of the plaintiff and against the defendants for the possession of the property described, in the petition, or for its value, to-wit, Seven thousand dollars, at the election of the plaintiff, and also for one cent damages and costs of suit. ’ ’

Which motion was sustained and a judgment rendered in favor of the plaintiff as follows, to-wit:

‘‘Mattie A. Case

v. 15370a

Fred. F. Espenschied and Mississippi Valley Trust Company.

‘ ‘ Now at this day the court having duly considered the motion heretofore filed herein, to render judgment on the mandate and opinion of the Supreme Court of Missouri, doth sustain said motion. It is therefore considered and adjudged by the court, that the plaintiff have and recover of the defendants the possession of the personal property described In the petition as follows, to-wit: One promissory note for the sum of six thousand dollars ($6,000) dated September 5, 1895, executed by Benjamin F. Lockhart and payable five years after date, to the order of the plaintiff with interest from date at the rate of six per cent per annum; and also a certain deed of trust dated September 5, 1895, made and executed by Benjamin F. Lockhart and Jennie Lockhart his wife, in which Andrew B. Case is trustee and party of the second part and plaintiff is party of the third part, on a certain tract of land, situated in St. Louis county, Missouri, in U. S. Survey 890, containing seventy-eight and twenty-two one hundredths acres, said deed of trust securing the payment of the aforesaid note, and being recorded on book 82 at page 301, in the office of the recorder of deeds for the said St. Louis county, or at the option of the said plaintiff the value of said property, being the sum of seven thousand dollars, and the further sum of one cent damages, together with her costs and charges herein expended and have execution therefor.”

To this action the defendants excepted, and each in due time filed their motions to set aside the judgment thus entered, which motions having been overruled, they perfected this appeal, in which the only question to be determined is whether the circuit court under the mandate was authorized to render the judgment last aforesaid. There is little room for argument on the question. The action was one at law triable by a jury. "While a jury was waived and the case proceeded before the court, sitting both as court and jury, this in no way changed the nature of the case or the essential character of the procedure therein. At the close of all the evidence the court declared the law to be that under the pleadings and the evidence the plaintiff could not recover, and thereupon entered judgment for defendants. The trial of the issues of fact was thus arrested and those issues were not passed upon by the trier of the facts. The ground upon which the trial court refused to submit the issues of fact to the trier of the fact is indicated in a memorandum referred to in the opinion as a finding of fact, hut which was really only a conclusion of law from the evidence, i. e., ‘ ‘ that the plaintiff never was the owner of the note. ’ ’ It was this conclusion of law which this court found to he erroneous, and for this error the case was reversed and remanded to the circuit court for trial in accordance with the views expressed in the opinion. With the issue of fact therein this court had nothing to do except to determine whether the evidence tended to prove the-issues tendered by the plaintiff. It was not within the province of this court to decide those issues, and when the case was remanded it was that the issues of fact might be correctly tried. It was the only purpose for which the case could have been remanded. Hence when in doing so, we said, “To he proceeded with in accordance with the opinion, ’ ’ it meant, and could only mean, that the trial of the facts was to he had in accordance with the law as declared by the court in the opinion. This court could not in the legitimate exercises of its jurisdiction direct a judgment in the case, and these words in the opinion could not have been intended to have such a meaning and the trial court was not warranted in attributing such a meaning to them. In entering such judgment the circuit court acted entirely without warrant of law, and the case, therefore, will be remanded with directions to that court to set aside the judgment last aforesaid and proceed anew with the trial of the case, in which that court will he governed by the law as laid down in the opinion heretofore filed therein, so far as the same is applicable to the facts that may he developed on such trial.

All concur.