108 Mo. App. 581 | Mo. Ct. App. | 1904
(after stating the facts). — It is insisted by Loewen’s counsel that the reversal of the first judgment by this court and the return of the case for another trial, did not empower the circuit court to retry the issues joined on the third and fourth counts of the petition, but that final judgment should have been entered in favor of Loewen on those counts, as well as on the other two. ■ If this is true, what reason was there for directing a retrial? We decided on the previous appeal, that Loewen was conclusively shown to have signed the notes in suit as an indorser and not as a maker. He was declared against as a maker in
‘ ‘ The evidence in this case shows conclusively that the relation which Loewen assumed to the notes in suit was that of indorser, and that he reserved to himself the protection of the safeguards of demand for payment at maturity and notice of dishonor, which the law accords to indorsers. The letter of the Wollmans requested that he waive protest and notice but this he declined to do and they accepted him as an indorser without such waiver, saying they would put the notes in the Continental Bank for prompt protest and notice if they were not paid when due. It is therefore plain that they did not consider Loewen a joint maker, and this disposes of the question of his liability as such. . . .
“Loewen was undoubtedly proved to be an indorser and was also proved to have become such on a sufficient consideration; his liability,' therefore, turns on whether steps were taken to hold him as such after the principal signer had made default.”
‘ ‘ The argument of the plaintiff is that the original judgment in his favor was reversed only as to the first count; that upon dismissing as to that count he had a right to judgment on' the second, without further trial. Where there are several causes of action, the court may direct separate trials, the judgment to await the trial of all the issues. R. S. 1879, sec. 3603. In such cases the awarding of a new trial as to one count would not call for a new trial as to the other counts. If all the issues are tried at the same time, with a verdict upon each cause of action, we can see no reason why the court might not award a new trial as to one cause of action and let the verdict stand as to the others. The question then is, what was done in this case 1 By looking to the opinion filed, when this cause was here before, we see that the errors considered related to the first count only; but our judgment is general and without limitation. So far as our judg
Bienenstock, who was the maker of the note and against whom the first judgment was rendered as such on the first two counts of the petition, did not appeal. The second judgment was against him as maker, but on the third and fourth counts, in which he was charged in the same capacity as he was in the first two, but Loewen differently. It is now urged by the latter’s counsel that, as Bienenstock submitted to the first judgment, it stood against him unimpaired by the reversal on Loewen’s appeal, and, therefore, the second judgment against him was void. On this premise the argument is raised in favor of LoeAven, that if he were to pay the judgment and sue Bienenstock to recover the amount paid, the latter could maintain, in defense of the action, that the first judgment in his (Bienenstock’s) favor, on the third and fourth counts, was valid and the subsequent judgment against him on those counts void, and that, therefore, it had been adjudicated that he was not liable on the notes. There is an apparent fallacy in this reasoning: if the first judgment in Bienenstock’s favor on the third and fourth counts is valid, it is only so if that entire judgment is valid as to him, and valid against him, therefore, on the first and second counts. Consequently, if
Not only is the argument unsound in its reasoning ; it is unsound, too, in its theory that the trial court was powerless to enter judgment against Bienenstock at the second trial on the third and fourth counts of the petition, because of the original judgment against him on the other counts, which, it is insisted, was not disturbed by the reversabas to Loewen. At most, the circuit court’s action on the second trial would prejudicially affect no one but Bienenstock, and he is not complaining. But this litigation was in a condition that made it necessary for the reversal to be treated as affecting the judgment against Bienenstock, in order that the trial court might comply with the law that there shall be but one final judgment in a cause. The second judgment had to include Bienenstock, who was a party defendant; and, therefore, the reversal of the prior one must be held to have set it aside as to him as well as to Loewen; otherwise it stood as a final judgment and in the-way of any further judgment in the case against any one. Sater v. Hunt, 75 Mo. App. 468; Helborn v. Naughton, 60 Mo. App. 103; Beshears v. Banking Assn., 73 Mo. App. 293; Henry v. Gibson, 55 Mo. 570.
We are cited to a group of decisions holding, in relaxation'of the old rule concerning the entirety of judgments, that a judgment at law which is void as to one of several defendants may be set aside as to him without setting it aside as to his codefendants. State ex rel. v. Tate, 109 Mo. 265, 18 S. W. 1088; Bremen Bank v. Umrath, 55 Mo. App. 43. Those decisions are-not exactly apposite; for the original judgment in this suit was not void as to either defendant, but merely erroneous as to Loewen. More pertinent citations are
“There may possibly be judgments,-which owing to the peculiar nature of the proceedings wherein they occur, require to be treated as entireties. We are not now called upon to decide as to that, and it is better to avoid generalizing unnecessarily.”
So in Neenan v. St. Joseph, we find this observation:
“The spirit of the law has been greatly changed and modified by the code, and the later decisions, following this spirit,, have reached the conclusion that a judgment is not to be regarded as an entirety in the sense of not being amendable or subject to correction, as to one of the parties, unless the substantial rights of the others would be injuriously affected thereby.”
In Hamilton v. Prescott, 73 Texas 565, the modern rule is well declared:
“We think the conclusion to be deduced from the apparently conflicting cases is that this court, when it finds error in the proceedings of the lower court as to any party to the judgment,.and not as to another, and that a proper decision of the case as to one is not dependent upon the other, will reverse in part and affirm in part; but, where the rights of one party are dependent in any manner upon- those of another, it will treat the judgment as an entirety and, where a reversal is required as to one, it will reverse the judgment as a whole.” In Elliott, Appellate Procedure, note, p. 487, that statement of the rule is approved.
In Christopher, etc. Foundry Co. v. Kelly, 91 Mo. App. 93, the point was as to the right of an appealing defendant to“ have a judgment reversed for an erroneous ruling against anon-appealing defendant, but not affecting the appellant. It was held he had not that right; and that as the party prejudiced had not com
The first judgment was entered by mistake on the first and third counts of the petition and was subsequently amended by an order nunc pro tunc, so as to be on the first and second counts. This is assigned for error on the present appeal, as it was on the prior one. The point was not noticed then, for the reason that we
The judgment is affirmed.