169 Mo. App. 272 | Mo. Ct. App. | 1912
(after stating the facts). — I. The verdict and judgment said to be involved here now were in favor of plaintiff and against defendant South
Now, while the old idea of the entirety of a judgment against several defendants, in conformity to the spirit of the Code, has lost so much of its rigor that it may be said, as a general rule, that judgments or verdicts will not be set aside as to one defendant because of the necessity, for error or otherwise, of setting it aside as to another, still that rule does not affect the statutory one, that there can be only one final judgment in the case, nor does it contravene the corollary of the statutory rule, that such final judgment must dispose of all the parties to the cause, nor should it operate contrary to the law as it affects the substantial rights of the parties. [See Holborn v. Naughton, 60 Mo. App. 100; Wollman v. Loewen, 108 Mo. App. 581, 84 S. W. 166.] In the last cited case there had been a judgment against the maker and the indorser of a promissory note. The judgment had been reversed and the cause remanded for retrial as to the indorser, the maker not appealing. We held that the reversal operated as to both, the court, through an opinion written by Judge Goode, saying,/‘The order reversing the first judgment in this cause and remanding it for retrial was unqualified by a reservation that the judgment should be left standing against Bienenstock. It could not be thus left and a new trial be had to determine Loewen’s liability as indorser, as we directed should be done. Otherwise, in an action at
In the case at bar, we could not affirm the judgment as against Southern Railway Company and at the same time reverse it and remand for retrial as to the Illinois Central, because, if we would affirm the judgment as to the Southern, that would be one judgment, and to send it back for retrial as to the Illinois Central would authorize another, with the result that there would be two judgments in the same cause, which, as we have seen, is forbidden by statute; because, also, we heretofore declared, in effect, that plaintiff could recover only against one of these defendants, not against both (see Connelly v. Railroad, 120 Mo. App. 652, 97 S. W. 616), and to send it back for retrial as to one, while leaving the judgment or verdict standing as to the other, must of necessity recognize that plaintiff could recover against both. As we cannot do both — that is, cannot reverse and remand for retrial as to Illinois Central while leaving the judgment standing against the Southern — but must refrain from doing one if we do the other, it follows that, having already irrevocably reversed the judgment and remanded the cause for retrial as to Illinois Central Railroad Company, we cannot now lawfully affirm the judgment or leave the verdict standing as to the Southern Railway Company. For this reason the judgment as against the Southern Railroad Company will be reversed and the cause remanded.
The foregoing is not the view urged upon us by the briefs, but we conceive it to be our duty to refrain of our own accord from indulging in obvious error.
As the case is to be sent back, we deem it proper to say that, in our opinion, the original verdict of March 15, 1906, should be treated as still extant in favor of the Southern Railway Company, although we accept the finding of the trial court that the Southern
The rule against two judgments does not intervene, for the reason that no judgment had been entered in favor of the Southern, and the finding, which is analogous to that on one cause of action where there are several in the case, will be suspended or held in abeyance until the case is ready for final judgment as to the other defendant, when all the parties may be disposed of in one judgment.
The foregoing being true, we see no justification for giving the reversal of the judgment of March 15, 1906 and the remandment of the cause on the appeal
We may add that we do not believe that the plaintiff can make any point at this late day and after what-has occurred in the case, that the first appeal was premature because the original judgment did not dispose of all the parties. [Mann v. Doerr, 222 Mo. 1, l. c. 10, 17, 121 S. W. 86.]
The judgment is reversed and the cause remanded.