88 Mo. App. 478 | Mo. Ct. App. | 1901
In 1894, plaintiff sued the defendant upon four causes of action, the first two counts of the petition being based upon two promissory notes executed by defendant to plaintiff; the third count alleged an indebtedness for legal services rendered by plaintiff as the attorney of defendant; the fourth count of the petition set forth a sale and delivery of cattle by plaintiff to defendant, and asked judgment for the price. Defendant answered by a general denial. At the August term, 1896, of the circuit court, the first and second counts were submitted by the parties to the court sitting as a jury, who gave judgment in plaintiff’s favor for the amount of the notes and interest sued for in these two counts, and continued the third and fourth counts of the petition. Thereafter, by consent of the parties, the causes of action set forth in the third
II. In a civil action, there can be only one final judgment, which must dispose of all the parties to the cause. R. S. 1899, sec. 773; Sater v. Hunt, 75 Mo. App. 468. While the statute authorizes the court upon the application of either party to a suit embracing several causes of action, to direct separate trials at the same or at different terms, yet it concludes the section, affording this right, in the following’ language: “The judgment upon each separate finding shall await the trial of all the issues.” R. S. 1899, sec. 694. Hence, the judgment rendered in this case upon the finding of the court on the first and second counts of the petition, was premature and unauthorized. It should have been reserved until the determination of all the issues in the case. Plaintiff having accepted that judgment in his favor and sued out an execution to enforce the same, thereby gave the defendant the clear right to move the dismissal of the suit upon the issues presented by the third and fourth counts of the petition. Eor after this final judgment defendant was under no further obligation by virtue of the process which had been served upon him in this action, to answer plaintiff’s demand for the remaining causes of action contained in the petition, and had defendant made seasonable objection to the further prosecution of these causes of action, or had he abstained from any further appearance in the case, the court would not have acquired jurisdiction of his person, and no valid judgment could have been rendered against him. But the continuance of the third and fourth counts which embraced causes of action totally distinct from the two which had been submitted to the court sitting as a jury, was in legal effect the institution of a new suit against the defendant. These causes of action were not adjudicated by the trial of the two counts upon the notes given by defendant. They were neither submitted to the court, nor embraced in its findings. As to
III. The next question presented by this appeal relates to the reasons given by the court for its award of a new trial. In support of the cause of action alleged in his fourth count, the plaintiff gave evidence that he had furnished money to the son of defendant with which to buy fifty head of steer ■ calves, upon a written agreement that the expenses of their keep for three years, or a less time, if mutually agreed upon between plaintiff and the son of defendant (J. M. Sanders), should be borne by the latter, when they should be marketed, and plaintiff should receive in lieu of his contribution of money and loss of interest, one-half of the gross proceeds of the sale and the said J. M. Sanders should receive the other half of the gross proceeds of the sale of such cattle, with a further proviso that upon failure on the part of J. M. Sanders to perform his obligation, then plaintiff should "take possession of said cattle and place them in the charge of some^good trusty person until they get ready for market, and any cost accruing on that ac