Reesman v. Rollinson
82 S.W. 646
Mo. Ct. App.
1904
Check Treatment
SMITH, P. J.

This is an action which was brought by plaintiffs — real estate brokers — to recover of the defendant — a landowner — $1,042.85 commission alleged in the petition of the former to be due and owing them by the latter under the terms and conditions of a certain contract. The record discloses that there was a trial to a jury of the issues made by the pleadings and that “at the conclusion of the plaintiffs’ evidence the defendant filed a demurrer thereto which was by the court sustained, and, thereupon, the plaintiffs took a nonstdt toith leave to move to set the same aside, to which judgment the plaintiffs at the time excepted.” The record further discloses that later on the plaintiffs filed a motion to set aside the involuntary nonsuit and for a new trial, which was by the court overruled, and to which ruling of the court plaintiffs excepted.

The defendant insists that the record entry just referred to was not a final judgment, and, therefore, an appeal does not lie from it. An appeal lies only from a final judgment in a cause, except in the few cases mentioned in section 806, Revised Statutes. Sperling v. Stubblefield, 83 Mo. App. 266; Silvey v. Sumner, 51 Mo. 199; Dale v. Copple, 53 Mo. 321; In re *70Spencer, 61 Mo. 375; Price v. Brown, 63 Mo. 347; State v. Wymer, 79 Mo. 277; Young v. Young, 165 Mo. 624. The decisive question, therefore, is whether or not the said entry is a final judgment; for, if it is not, the appeal must be dismissed.

In Palmer v. Crane, 8 Mo. 619, it was declared that a final judgment on a demurrer should be thus entered: £ ‘ Therefore, it is considered, that plaintiff take nothing by his writ, etc., and that defendant go thereof without day, etc.” 1 Saunders 198. In Sweet v. Jeffries, 48 Mo. 279, the plaintiffs at the trial offered a deed in evidence which was excluded, and, thereupon, they took a nonsuit with leave to set aside; and that motion being overruled, they excepted and judgment was given against them for costs, which was the only judgment given in the cause; and, in the course of the opinion disposing of the appeal, it was said that “where a non-suit is taken in order to justify an appeal or writ of error, the judgment should be formally set out in this wise: ‘that it is by the court therefore considered and adjudged that the plaintiff take nothing by this writ and that defendant go thereof without day, and recover of the plaintiff his costs, ’ etc. ” In Moran v: Plankinton, 53 Mo. 243, it was held that a final judgment in favor of defendant should conclude in this way: “It is therefore considered by the court that plaintiff take nothing, by his writ and that defendant be discharged and go hence without delay and have and recover of and from said plaintiff his costs in this behalf expended and have hereof execution. ’ ’ In the preceding case, as well as in those of Evans v. Russell, 61 Mo. 37; State v. Newton, 26 Mo. App. 11, and Crockett v. Lewis, 66 Mo. 671, it was held that a judgment against the plaintiff for costs and that he have thereof execution was not a final judgment from whieh an appeal or writ of error would lie.

In Rogers v. Gosnell, 51 Mo. 466, where a nonsuit was’taken with leave, a judgment to the effect “that *71defendant go hence and recover Ms costs, etc,” was held, in substance, a good final judgment, since it seemed that the defendant was discharged from the action and it would be difficult to take any further steps without reversing the judgment. In Moody v. Deutsch, 85 Mo. l. c. 244, the judgment appealed from was that “it is therefore ordered and adjudged by the court that this cause be dismissed and that the defendant recover of plaintiff all costs herein accrued and have thereof execution.” In the opinion in the case, it is said that a judgment will be held sufficient when it appears to have been intended by some competent tribunal as the determination of the rights of the parties to an action and shows in intelligible language the relief granted, and accordingly it was held that, while the judgment just quoted was not in the exact form of that as required by Boggess v. Cox, 48 Mo. 278, it was sufficient. And a similar ruling was made by us in Trumbo v. Flournoy, 77 Mo. App. 324, and in Farley Bros. v. Cammann, 43 Mo. App. 168.

Kautsch v. Droste, 82 Mo. App. 412, was where the defendant interposed a demurrer to the petition, which was sustained. The order of the court was: “It is ordered and adjudged that said demurrer be sustained and that plaintiff be denied a judgment enforcing specific performance of the contract . . . and that plaintiff elected to stand on said demurrer and refusing to further answer the said petition . . .. to which action of the court sustaining the demurrer plaintiff duly excepted.” In disposing of the appeal in the cause, we said: “It will be seen from the recitals therein that the plaintiff did not stand on the demurrer and permit the court to dismiss the petition and discharge the defendant. The action of the court sustaining the demurrer according to the well-established precedents was not a final judgment.”

The entry of the supposed judgment in the present case omits the essential words required in a final judg*72ment in such a case: that is to say, that the plaintiff take nothing by his ivrit and that defendant go hence vnthout day and contains no equivalent.expression. If it had recited “that defendant go hence and that he recover his costs,” as in Rogers v. Gosnell, 51 Mo. 466, or even that, “this cause be dismissed and that defendant recover of plaintiff all the costs accrued herein” as in Moody v. Deutsch, 85 Mo. 237, it would probably have been sufficient. It does not even discharge the jury that had been impaneled to try the cause, or adjudge the costs. It does not appear that any determination of the rights of the parties to the action was intended by it, but, on the contrary, that a further entry was contemplated to accomplish that.

For want of a final judgment, the appeal in the cause must be dismissed.

All concur.