Summary
In Gloria Lee Realty Co., supra, there was no final judgment; the parties appealed from the verdict on plaintiff's petition and the jury verdict on the first and fourth counts and crossclaims.
Summary of this case from State ex Rel. Wade v. DaltonOpinion
No. 28161.
October 16, 1951. Motion for Rehearing or for Transfer to Supreme Court Denied November 15, 1951.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, MICHAEL J. SCOTT, J.
James J. Milligan, St. Louis, for appellants.
George J. Brennan, Walter J. Kramer, St. Louis, for respondent.
This is an appeal from an order of the circuit court dismissing an appeal taken to said court from a judgment rendered in a magistrate court. The action, as instituted in the magistrate court, was for two months' rent in the sum of $69, alleged to be due plaintiff, Gloria Lee Realty Company, from the defendant, James Madigan. Timothy J. Mullin, Charles M. Walters, Jr., Mullin-Walters Realty Company, Inc., and Enos Eaton were joined as co-defendants on motion of defendant, James Madigan. Thereafter, defendant, James Madigan, filed an answer to plaintiff's petition, as well as four counterclaims and cross-claims against plaintiff and the co-defendants above mentioned.
By his answer, defendant Madigan alleged that plaintiff and the co-defendants Timothy J. Mullin, Charles M. Walters, Jr., Mullin-Walters Realty Company, Inc., and Enos Eaton were the owners of and agents for the premises in question, and that he, defendant, had occupied said premises as a month to month tenant at a rental of $30 per month until the 18th day of November, 1949, at which date he vacated said premises without giving any written notice thereof to either plaintiff or said co-defendants. It was then alleged that defendant vacated said premises on said date by reason of being constructively evicted therefrom by the plaintiff and said co-defendants.
The acts alleged as constituting said constructive eviction were: permitting the roof of said building to fall into such a dilapidated condition that rain water ran through said roof and damaged defendant's furnishings and personal effects, and that said water caused the plastering on the ceilings and walls of said premises to fall at numerous places with the result that defendant's property was further damaged. It was alleged that on one occasion defendant received personal injuries as a result of said falling plaster. It was further alleged that as a result of said condition defendant was forced to abandon and move from said premises. By said answer the sum of $15 (one-half month's rent) was tendered.
By his first counterclaim and cross-claim defendant sought to recover the sum of $323, alleged to be the amount of the damage to his furniture, suffered as a result of failure on the part of plaintiff and the co-defendants to keep said premises in repair.
The second counterclaim and crossclaim alleged an overcharge for rent in excess of that permitted by the Federal Housing Act, 50 U.S.C.A. Appendix, § 1881 et seq., in the sum of $36. Judgment was prayed for treble said sum, together with a reasonable attorney's fee, as provided by said Act.
In the third counterclaim and crossclaim defendant alleged an overpayment of rent in the amount of $45, for which sum he prayed judgment, together with punitive damages in the sum of $250.
By the fourth counterclaim and crossclaim defendant sought $500 actual damages and $250 punitive damages for his said alleged wrongful eviction.
Timothy J. Mullin, third-party defendant, field an answer to the cross-claim filed against him by Madigan, which answer consisted of a general denial. Mullin also filed a cross-claim against said defendant. By said cross-claim he alleged that on May 31, 1946, he was the owner of the premises in question and, on said date, gave the defendant Madigan notice to vacate said premises by the 30th of July, 1946, in which said notice he advised said defendant that he desired the possession of the premises for occupancy by himself and wife; that said defendant refused to move, claiming defective service of notice and, through delay, dilatory tactics and technical defenses, placed him (Mullin) in the position of having no abode for himself and wife, with the result that he was compelled to purchase another residence. It was averred that as a result of the acts of said defendant, he (Mullin) was severely damaged and inconvenienced, and lost the earnings of the money invested in the premises so purchased, all to his damage in the amount of $1,500, for which sum he prayed judgment.
To the cross-claim of said Timothy J. Mullin, third-party defendant, the defendant James Madigan filed a reply which consisted of a general denial.
The trial in the magistrate court resulted in separate verdicts, as follows:
(1) On plaintiff's cause of action, plaintiff was awarded the sum of $15, which amount defendant Madigan, by his answer, had tendered for holding over fifteen days after the rent due date.
(2) On defendant Madigan's first counterclaim and cross-claim the sum of $200 was awarded said defendant against plaintiff and the co-defendants.
(3) On defendant Madigan's second counterclaim and cross-claim the jury awarded defendant Madigan damages in the sum of $95.85 against plaintiff and said codefendants, and the court awarded an attorney's fee in the sum of $35.
(4) On defendant Madigan's third counterclaim and cross-claim the jury found in favor of defendant Madigan and against plaintiff and said co-defendants, and awarded said defendant actual damages in the sum of $45, and punitive damages in the sum of $1.
On defendant Madigan's fourth counterclaim and cross-claim the jury found the issues in favor of said defendant Madigan and against plaintiff and said co-defendants, and awarded said defendant the sum of $272 actual damages and $137 punitive damages.
The transcript does not show any disposition by the jury of the issues raised by the cross-claim of Timothy J. Mullin. There is no judgment on the verdicts appearing in the transcript. Appellants' counsel, in their brief, state that no final judgment was or has been entered on the said verdicts.
Thereafter, and within ten days after the rendition of the jury's verdict, plaintiff and said co-defendants filed in said cause the following notice of appeal (caption and signatures omitted):
"Notice of appeal is hereby filed with The Magistrate Court of the City of St. Louis, that the above-named plaintiff Gloria Lee Realty Company and co-defendants Timothy J. Mullin, Charles M. Walters, Jr., Mullin Walters Realty Company, Inc., and Enos Eaton do hereby appeal to the Circuit Court of the City of St. Louis, Missouri, from the following verdicts of the jury and judgments entered on the 4th day of May, 1950, in Division Number 2 of the Magistrate Court, in the above-entitled case, towit:
"1. From the verdict of the jury and judgment entered in favor of the abovenamed Gloria Lee Realty Company and against the defendant James Madigan in the sum of Fifteen ($15.00) Dollars, on the 4th day of May, 1950.
"2. From the verdict of the jury and judgment entered in favor of the abovenamed James Madigan on his first counterclaim and cross-claim and against the plaintiff Gloria Lee Realty Company and co-defendants Timothy J. Mullin, Charles M. Walters, Jr., Mullin Walters Realty Company, Inc., and Enos Eaton in the sum of Two Hundred ($200.00) Dollars, on the 4th day of May, 1950.
"3. From the verdict of the jury and judgment entered in favor of the abovenamed James Madigan on his fourth counterclaim and cross-claim, and against the plaintiff Gloria Lee Realty Company, a corporation, and co-defendants Timothy J. Mullin, Charles M. Walters, Jr., Mullin Walters Realty Company, Inc., and Enos Eaton for actual damages in the sum of Two Hundred and Seventy-two ($272.00) Dollars and punitive damages in the sum of One Hundred and Thirty-seven ($137.00) Dollars, an aggregate of Four Hundred and Nine ($409.00) Dollars, on the 4th day of May, 1950.
"Date May 12, 1950."
After the cause reached the circuit court, defendant James Madigan filed a motion to dismiss the appeal, alleging as grounds for said motion:
"(1) The aforesaid plaintiff and co-defendants, as appears on the face of the record, attempt to appeal from designated portions of said judgment contrary to statute in such cases made and provided;
"(2) That the purported and attempted partial appeal is defective and ineffectual as a matter of law, is not provided for by statute and confers no jurisdiction upon this Court to hear and determine same de novo;
"(3) That the said plaintiff and co-defendants have failed to comply with the statutory requirements governing appeals to the Circuit Court from judgments rendered in Magistrate Courts as conditions precedent to right of review thereof;
"(4) That the defects and omissions in the attempted partial appeal by plaintiff and said co-defendants were not the result of inadvertence, oversight or excusable neglect, but was done deliberately with design and purpose to avail themselves of such parts of said judgment as appear favorable to them, and to appeal from those which are adverse to them, although all parts are dependent and comprise one composite judgment, and are inseparable as a matter of law;
"(5) This Court is without authority in law to remedy the defects and omissions appearing on the face of the record as to such attempted and purported appeal of plaintiff and said co-defendants;
"(6) Said judgment has become final as a matter of law by the lapse of the statutory time within which plaintiff and co-defendants could effectually appeal therefrom."
The foregoing motion was by the court sustained. This appeal followed.
In this court, appellants urge that the trial court erred in sustaining the motion to dismiss, even though their appeal was not from a final judgment of the magistrate. Appellants contend that a proper interpretation of Section 512.270, R.S.Mo. 1949, compels this conclusion. Section 512.270, supra, is as follows: "Upon the return of the magistrate being filed in the office of the circuit clerk, the court shall be possessed of the cause, and shall proceed to hear, try and determine the same anew, without regarding any error, defect or other imperfection on the trial, judgment or other proceedings of the magistrate or sheriff in relation to the cause."
The above section is identical in terms with Section 2738, R.S.Mo. 1939, which section applied to actions brought before justices of the peace, except that the words "magistrate" and "sheriff" have been substituted in the new act for the words "justice" and "constable" which appeared in the former act; and there has been omitted in the present act the phrase — "in the original summons or the service thereof" — after the word "imperfection", which phrase appeared in the prior act.
In construing the former act this court held, in Biederman Furniture Company v. Isbell, 102 S.W.2d 746, that said section 2738 did not foreclose the right of a party to question the sufficiency of an affidavit and bond for appeal. In our opinion, that same construction should be placed on Section 512.270, supra. The filing of a proper and timely notice of appeal with the magistrate is necessary before the circuit court can acquire jurisdiction upon the filing of the return of the magistrate. It is true that an appeal is not finally perfected until the return is filed, but the mere filing of it does not cure defects in the notice of appeal. It is only when a proper notice of appeal is filed that the circuit court must proceed in the manner directed by the statute.
Under the former justice court practice, by virtue of Section 2739, R.S.Mo. 1939, no appeal could be dismissed for want of an affidavit or bond, or because either were defective or insufficient, if the appellant filed a proper affidavit and bond before the determination of the motion to dismiss. But this statute was repealed, Laws Missouri 1945, p. 1078, and was not re-enacted as a part of the magistrate code.
In support of their contention, appellants cite and rely on State ex rel. Duraflor Products Co. v. Pearcy, 325 Mo. 335, 29 S.W.2d 83. Said case is not in point. In that case the court held the circuit court was without authority to entertain a motion to vacate all or any part of the judgment of the justice. The point raised in the case at bar was not there involved, nor was it discussed. No motion to dismiss was filed in that case, and, under the law as it then existed, defects in affidavits for appeal were waived on failure to move to dismiss. Standard Historical Society v. Gillespie, Mo.App., 111 S.W.2d 954. Therefore, the reason why the parties did not raise the point involved in the case at bar is very apparent.
The notice of appeal in the case at bar was defective and insufficient to confer jurisdiction on the circuit court. The right of appeal in such cases is purely statutory, and is governed by Section 130, Laws of Missouri 1947, page 245 R.S.Mo. 1949, § 512.060. Said section provides for appeals by aggrieved parties from the judgment in the cause. No provision is made for appeals from the jury's verdict. Furthermore, the judgment in the cause from which an appeal will lie must be a single final judgment which disposes of all the issues raised by the plaintiff's petition, and any counterclaim or set-offs filed by defendants and litigated at the trial. R.S. Mo. 1949, sec. 517.270. There can be no valid separate judgment on a counterclaim or cross-claim. Biederman Furniture Co. v. Isbell, Mo.App., 102 S.W.2d 746; State ex rel. Duraflor Products Co. v. Pearcy, 325 Mo. 335, 29 S.W.2d 83; and any appeal taken must be from the one and only judgment which the magistrate is authorized by law to render. And, the fact that no formal judgment was entered of record does not alter the situation. In legal contemplation, there is a final appealable judgment in the cause as soon as the verdict of the jury is entered on the docket of the magistrate. Hazeltine v. Reusch, 51 Mo. 50; Morse v. Brownfield, 27 Mo. 224; State ex rel. Vanderburg v. Bidwell, 136 Mo.App. 503, 118 S.W. 122; Ex parte Perse, 220 Mo.App. 406, 286 S.W. 733; Stephenson v. Jones, 84 Mo.App. 249. It follows, therefore, that a notice of appeal wherein an attempt is made to appeal from a jury's verdict or from less than the entire judgment is insufficient to confer jurisdiction on the circuit court. Biederman Furniture Co. v. Isbell, Mo.App., 102 S.W.2d 746. Nor can the notice in the case at bar be reasonably construed as an attempt in good faith to appeal from a final judgment and, therefore, sufficient under the principles announced in Weller v. Hayes Truck Lines, 355 Mo. 695, 197 S.W.2d 657.
In appellant's brief it is specifically stated that there was no final judgment, and that plaintiff and the co-defendants appealed from the jury's verdict on plaintiff's action and the jury's verdict in favor of defendant on the first and fourth counter and cross-claims. It is further stated that at the trial plaintiff and the co-defendants agreed on the amounts allowed defendant on the second and third counter and cross-claims, and that upon giving notice of appeal, counsel for plaintiff offered to pay in full the amounts allowed by the jury on the second and third counter and crossclaims. It would, therefore, seem that appellants by their notice of appeal were attempting to restrict a trial in the circuit court to only part of the issues in the case.
The action of the trial court in sustaining the motion to dismiss was proper. The order appealed from is affirmed.
BENNICK, P. J., and HOLMAN, J., concur.