34 Mo. App. 581 | Mo. Ct. App. | 1889
Lead Opinion
I. In our opinion the former litigation had, and judgment entered therein, settled forever and completely the rights and liabilities of the parties to the agreement made on September 10, 1884.
It was a matter fairly in issue under the pleadings of that case, and the court was, by request of the defendant, joined therein by plaintiff, asked to adjudicate the respective claims of the plaintiff and defendant. This was done, and the court found the facts, and decreed, in accordance with the facts, “ that the consideration of said contract had wholly failed — that the same was without consideration, vbid and of no effect.” This is a final decree, not reversed, nor appealed from, and by it the parties are forever bound. Buchanan v. Smith, 75 Mo. 463; Choteau v. Gibson, 76 Mo. 47; Hickerson v. City of Mexico, 58 Mo. 64. Neither was such a judgment, so had in the equity case, disturbed by the subsequent non-suit in the action at law.
There had grown out of the original one action a separate equity suit, which was, and should have been, separately tried, determined and separate judgment entered. It could not have been properly tried in any other way. Estes v. Fry, 94 Mo. 271.
Such judgments are so entirely separate and distinct that the appellate courts will affirm one and reverse and remand the other. Crowe v. Peters, 63 Mo. 429-436; Boeckler v. Railroad, 10 Mo. App. 453; State ex rel. Dixon v. Givan, 75 Mo. 517.
The case at bar, then, is before us, relieved altogether of any incipient agreement, since, by the judgment of a court of competent jurisdiction, it no longer exists as a living, valid contract, and we are thereby under no necessity of further considering several points suggested, in connection therewith, in defendant’s brief.
Under the petition the court was fully warranted in submitting to the jury whatever damages, if any, were done to the entire tract of eleven hundred acres. It was the gravamen of the plaintiff’s complaint, that he owned and held the whole eleven hundred acres as one farm, that, this road was laid out and constructed through and across the same, and that by reason of such appropriation of said strip through and “across said lands” he was damaged, etc. Besides, this was the theory upon which defendant introduced a number of witnesses and it was sought by them to show' to the jury that the tract of land, taken as an. entirety, was not injured. The damages proved were within the allegations of the petition. Burkeholder v. Rudrow, 19 Mo. App. 65. And the trial court was correct in refusing defendant’s instruction number 6. Combs v. Smith, 78 Mo. 32; Welsh v. Railroad, 19 Mo. App. 127.
We think, in all matters called to our attention, the cause was fairly tried, and submitted on proper issues and correct instructions.
The judgment of the circuit court is therefore affirmed.
Rehearing
On motion for a rehearing.
It is urged, on motion for a rehearing, that our holding as to the measure of damages in this cause is in conflict with the rulings of the supreme court as announced in the following causes: Mueller v. Railroad, 31 Mo. 262; Soulard v. City of St. Louis, 36 Mo. 546 ; Jamison v. Springfield, 53 Mo. 224; Railroad v. Ridge, 57 Mo. 599; City of Springfield v. Schmook, 68 Mo. 394.
We think we are supported by Welsh v. Railroad, 19 Mo. App. 127, and by Coombs v. Smith, 78 Mo. 32, although, in case last cited (Coombs v. Smith), no attention is paid in the opinion to the cases supra holding as we think a contrary view.
However, as in Coombs v. Smith there is no express announcement on the question, and since in following the former ruling of this court in Welsh v. Railroad, 19 Mo. App. 127, we seem to be in conflict with some of the cases first above referred to, the cause will be transferred to the supreme court for decision.
Motion for rehearing overruled and cause transferred to supreme court.