186 Mo. App. 75 | Mo. Ct. App. | 1914
— Plaintiff in error, who is plaintiff also in the case, sued out this writ of error on May 19, 1909, to the end of reversing a judgment in favor of defendant in the case and defendant in error, on both counts of the petition. There is no bill of exceptions before us and the record alone is here.
It appears from the record that plaintiff instituted the suit against defendant by filing his petition in two counts in the circuit court and causing summons to issue thereon. The first count of the petition declared upon a promissory note of $2500, and the second count declared npon five separate promissory notes, which, it is said, all represented but one cause of action. On November 23, 1909, defendant filed his answer to both counts of the petition, and on November 27,1909, plaintiff replied thereto. Thereafter, on April 6, 1910, the cause was tried in the circuit court. At the conclusion of the trial, before submitting the issue to the jury, the court sustained defendant’s motion to that effect and required plaintiff to elect upon which count of the petition he would further proceed. Upon sustaining this motion, plaintiff elected to stand upon his first count and, thereupon, suffered an involuntary nonsuit as to the second count and dismissed it. The jury returned a verdict in favor of defendant on the first count of the petition, and, thereafter, in due time, plaintiff filed his motion for a new trial, alleging that the court erred in requiring him to elect on which count of the petition he would proceed and thus forcing him to an involuntary nonsuit on the second count.
On May 16, 1910, the court sustained plaintiff’s motion for a new trial on the ground above stated— that is, that it erred in requiring plaintiff to elect and forcing him to au involuntary nonsuit on the second count of his petition — set the verdict of the jury in favor of defendant on the first count aside, and ordered a new trial. Thereafter, on May 27, 1910, defendant appealed to this court from such order of the court,
The record before us recites the facts above stated, but omits to disclose that plaintiff filed a motion requesting the court to reinstate the second count of his petition on the docket for trial. However, it appears that the trial of the cause came on a second time- in the circuit court on the 19th day of Februáry, 1912, and both parties appeared and contested the same. After hearing the evidence at the second trial, February 19, 1912, it appears the jury returned a verdict in favor of defendant in the trial court and defendant in error here, on both counts of the petition. On this verdict, the court entered a proper judgment in favor of defendant on both counts of the petition.
The point made and pressed upon us here for a reversal of the judgment is, that the court was without jurisdiction to hear and determine the issue arising on the second count of the petition, for it is said this count was never reinstated in the trial court for trial by an order of record to that effect after plaintiff suffered the involuntary nonsuit thereon above referred to and dismissed it. Therefore, it is said that the first count of the petition alone was before the court in the second and last trial, for without a reinstatement of the second count after the involuntary nonsuit, no valid judgment could be given thereon. The argument is an exceedingly technical one, for it appears affirmatively on the face of the record that the issue was tried on both counts of the petition and responded to in the verdict, which expressly states a finding in favor of. defendant on both. Moreover, as before stated, the
’ However, it is true the record before us does not affirmatively disclose in so many words that the trial court, on plaintiff’s motion, reinstated the second count of the petition for trial at the time it granted the new trial in the cause. But it does appear that plaintiff moved the court for a new trial on the ground that the court erred in requiring him to elect on which count of the petition he would stand and in forcing upon him an involuntary nonsuit as to the second count. It appears, too, affirmatively on the face of the record that the court sustained this motion and set aside the verdict of the jury in the former trial, on the first count, because it had erred in requiring plaintiff to elect on which count of the petition he would proceed and forcing upon him an involuntary nonsuit. The motion on which the court acted with respect to this matter is not part of the record and, of course, is not before us, for the reason there is no bill of exceptions here. The bill of exceptions alone is the proper repository for such a motion, and without it, we are unable to ascertain just what plaintiff prayed for therein. However, the circuit court, being a court of general jurisdiction, every presumption must be indulged in aid of its proceedings to sustain the same as regular and proper, unless facts revealing the contrary appear before us. Therefore, it must be presumed, among other things, that plaintiff incorporated in his motion for a new trial, grounded upon alleged error of the court in requiring bim to elect upon which count of his petition he would proceed, a request that the court reinstate the second count of the petition for trial. [Needles v. Burk, 98 Mo. 474, 11 S. W. 1008.] Such appears to be the gravamen of his complaint in the motion for a new trial, and it was on this ground the court sustained
Plaintiff in error seems to overlook the effect of an order sustaining a motion for a new trial, which is, generally speaking, to leave the case as though no trial had taken place. [Hurley v. Kennally, 186 Mo. 225, 85 S. W. 357.] There is an exception, of course, when the petition contains two or more counts and the verdict is for plaintiff on one or more and for defendant on -one or more. In such case, the granting of a new trial to one of the parties on a count ruled adversely to him does not of itself reopen others well tried and decided in his favor. [See Cramer v. Barmon, 193 Mo. 327, 91 S. W. 1038.] However, it is the rule that an order granting a new trial will be presumed to award' a new trial on all of the issues and to reopen the whole case unless there are directions to the contrary. [14 Enc. Pl. & Pr. 936.].
Here, the court expressly recited of record that it granted the new trial because it erred in requiring plaintiff to elect on which count of the petition he would proceed, when it should have sent both counts to the jury. This reveals beyond question that the court receded from its position which had forced plaintiff to an involuntary nonsuit of the second count and granted to him everything that may be presumed in his favor on that, motion, and such obviously includes a reinstatement of his cause of action declared upon in the second count for trial.
Other affirmative matters of record make it appear that both counts of the petition were subsequently tried and a verdict and judgment given in express terms for defendant on both such counts. The judgment should be affirmed. It is so ordered.