Opinion
No. 28694.
April 21, 1953.
APPEAL FROM THE CIRCUIT COURT, PIKE COUNTY, B. RICHARDS CREECH, J.
James D. Clemens and J. H. Haley, Bowling Green, for appellant.
Long McIlroy, Bowling Green, and F. D. Wilkins, Louisiana, for respondent.
This is an appeal from an order of the trial court sustaining a motion of the plaintiff Nettie Exman (since deceased) to strike from the record the defendant's amended counter claim and his motion to assess damages thereon. In so ruling the court held that it had lost jurisdiction of the cause by reason of its disposition in a former appeal. Defendant has appealed. Since submission of the case on this appeal the death of Nettie Exman has been suggested and Beulah Shepherd, her executrix, has been substituted as respondent.
This case was before this court on a previous appeal, reported in 240 S.W.2d 718. The pertinent facts are that the plaintiff originally filed an action in replevin against defendant, whereby she sought to replevin six cows and one calf which she alleged were her property and wrongfully detained by defendant. She also sought damages for the detention. Defendant filed answer therein claiming a half interest in the property and prayed judgment for possession or the value thereof and $300 damages. He also filed a counterclaim of two counts, one for damages in the sum of $1,000 for conversion of the cattle and one for $1,150 actual damages and $1,000 punitive damages for the malicious prosecution of the case. Upon trial by the court without a jury, the trial court found for the plaintiff on her petition for possession only, allowing her no damages, and found for the plaintiff on defendant's counterclaim, thereupon entering judgment accordingly, which awarded the plaintiff possession and costs.
Defendant's first appeal was from the latter judgment, in which his sole contention was that the court erred in finding that the defendant had sufficient control over the cattle to lay the basis of a replevin action against him. The evidence disclosed that plaintiff had contracted with defendant to feed and care for her said cattle on her farm in return for one half of the calves. In 1949 she moved the cattle then on hand to her sister's farm. The opinion of this court on that appeal held that defendant had admitted plaintiff's ownership of the cattle; that he had no interest in them and was making no claim to them. The opinion held further that defendant did not have actual or constructive possession of the cattle at the time in question, but that they were at said time in the plaintiff's possession on her farm, and that defendant had made no effort to prevent their removal except to advise plaintiff to "leave them alone". The opinion held that under the evidence plaintiff's action in replevin could not be maintained. The opinion concluded: "After considering the evidence in this case it is our opinion that the judgment should be reversed. It is so ordered".
The opinion of this court in the first appeal was rendered June 19, 1951, 240 S.W.2d 718. The mandate on the judgment therein issued on June 19, 1951, was as follows:
"Now again come the parties aforesaid, by their respective attorneys, and the Court being now sufficiently advised of and concerning the premises, doth consider and adjudge that the judgment rendered herein by the said Circuit Court of Pike County be reversed, annulled, and for naught held and esteemed; that the said appellant be restored to all things he has lost by reason of said judgment; and that said appellant recover of said respondent the costs of this appeal, namely: * *.
"It is ordered that said costs be taxed in said Circuit Court of Pike County in favor of appellant, for which execution may issue in said Circuit Court."
It is not disputed that the judgment of this court (not shown in the present transcript) was similar in its wording, tenor and effect to the above mandate. The form of mandate used was the form generally used following an outright reversal of judgment. Defendant does not contend that he filed any motion for rehearing of the case in this court or other motion to correct or to modify the opinion, judgment or mandate. The mandate having been duly transmitted to the trial court, the same was there recorded on September 17, 1951, and judgment ordered in accordance therewith.
Thereafter, on October 2, 1951, defendant filed a motion in the trial court in the same cause to assess defendant's damages "in conformity with the mandate of the St. Louis Court of Appeals". On October 10, 1951, defendant filed in said cause an instrument entitled: "First Amended Counterclaim". This purported counterclaim apparently was intended to abandon the first and second counts of the original counterclaim in this case and to substitute, by amendment, one count based on a breach of contract on plaintiff's part. It alleged plaintiff had agreed that if defendant would care for certain cows on plaintiff's farm and would care for the calves of such cows when born and until weaned, plaintiff would pay defendant half of the value of such calves at weaning time, which contract defendant accepted and proceeded to perform; but that on December 1, 1949, plaintiff prevented his further performance of the contract by removing said cows without defendant's permission. It was further alleged that since removal of the cows, five calves were born of such cows and have been weaned, and on or about November 1, 1950, were sold by plaintiff for $875, by reason of which defendant asked judgment against plaintiff for $437.50, or whatever amount may be half of the reasonable value of said five calves at the time they were weaned.
On April 21, 1952, plaintiff, by leave of court, filed her motion to strike the above amended counterclaim and defendant's motion to assess damages, for the reason that the court was without jurisdiction to proceed in the cause. On August 13, 1952, the court sustained plaintiff's motion to strike.
Defendant filed his motion to set aside the order dismissing his motion to assess damages and his amended counterclaim and for a new trial thereof on the ground that the order of the court was contrary to the law and the mandate of the St. Louis Court of Appeals and was not supported by the record of the case. This motion to set aside and for new trial was overruled by the trial court on November 1, 1952, the court entering its finding that it was without jurisdiction to proceed in the cause by reason of the opinion and mandate of the St. Louis Court of Appeals therefore rendered, whereby the previous judgment of the trial court was reversed, but not remanded, thus depriving the trial court of further jurisdiction. Thereupon defendant took the present appeal from the order of the trial court, dismissing his motion to assess damages and his amended counterclaim.
Defendant contends in this appeal that the reversal of plaintiff's judgment on the prior appeal necessarily implied a remand of the case for trial of defendant's counterclaims, because the judgment which was reversed was composed of a determination of plaintiff's petition and of defendant's two counts of his counterclaim. It is argued that the reversal of a judgment for plaintiff on her petition and on defendant's counterclaims necessarily leaves defendant's counterclaims for further proceedings thereon in the trial court, whether or not this court used the word "remand" in the disposition of the case. Furthermore, defendant asserts that this court's mandate on the prior appeal specifically ordered that the defendant "be restored to all the things he has lost by reason of said judgment", which was his right to relief on his counterclaim.
The plaintiff, in the present appeal, claims that the first appeal was not taken from the findings of the trial court against defendant on his two counts of his counterclaim, but from that part of the entry, which constituted the judgment, adjudicating the right of possession to be vested in the plaintiff and awarding her the costs in the case. She further states that such judgment was reversed outright and unconditionally; that at no time did defendant ever call to the attention of this court that it should have awarded defendant a new trial and remanded the cause for that purpose; that defendant has been guilty of laches in not seasonably applying to this court for a correction of any such errors in this court's opinion or judgment as he now claims.
There can be no doubt that the opinion of this court on the previous appeal set aside as a nullity the entire judgment of the trial court. Campbell v. Kauffman Milling Co., 127 Mo.App. 287, 292, 105 S.W. 286. There was only one judgment and that purported to dispose of the plaintiff's petition and the defendant's answer and two counterclaims. It is also obvious that the opinion definitely determined that the plaintiff could not recover on her petition. Walker v. Ross, 230 Mo.App. 378, 90 S.W.2d 1057, 1058. It is true also that the opinion concludes with a reversal and nothing more, so far as the express words are concerned.
If the opinion on its face was in fact incomplete without a remanding of the cause for further proceedings on the counterclaims, it was the duty of the defendant by timely motion for rehearing, or to modify, or by some other proper means to call to this court's attention the necessity of such correction. Donnell v. Wright, 199 Mo. 304, 97 S.W. 928, 932. Furthermore, it appears evident from the opinion that considering defendant's pleading and his evidence, he could not recover on either of his counterclaims then on file. The mandate, in usual form in such cases, setting aside the judgment as a nullity and ordering defendant to be restored to all things he had lost by reason of the judgment, does not of itself indicate that this court, in effect, remanded the case. No funds or other property had been sequestered, exchanged or otherwise passed form defendant to the plaintiff pending the case, which would be the subject of restitution unless the accrued costs be so considered. 5 C.J.S., Appeal and Error, § 1983, page 1544; 3 Am.Jur. page 743, Section 1246. Had any such property or rights been lost by the erroneous judgment, the trial court would have the inherent right to restore them, unless otherwise ordered by the appellate court. State ex rel. Abeille Fire Ins. Co. v. Sevier, 335 Mo. 269, 282, 73 S.W.2d 361. The right to a hearing on the merits of his counterclaims was not lost to defendant by the erroneous judgment, since he had had such a hearing.
If, however, the opinion in the former appeal be deemed not necessarily incomplete because it did not expressly remand the case, but should be considered as implying the right of further proceedings on the counterclaims, defendant would have the right to such further proceedings on those counterclaims. But those counterclaims, having now been abandoned by him since the reversal of the judgment, nothing remains of this cause to be restored to him which he has lost by reason of the original judgment other than his costs. His right to file and be heard on the merits of his new and substituted cause of action was not "lost" to him by reason of the erroneous judgment, nor can it be said that such right could be "restored" to him by restitution after repeal of the judgment. The cause of action he now asserts for damages for breach of contract was no part of the judgment disposed of on the first appeal. The further proceedings to which he was entitled under such implied remand would be on the counterclaims then in the case and not for the purposes of a trial on the merits of a new cause of action thereafter filed.
Furthermore, so far as the transcript of the record on this appeal shows, the defendant's claim, if any, against the plaintiff for removal of the cattle on December 1, 1949, thereby preventing defendant from performing his contract for their care, accrued to him before the trial and judgment, and under Section 509.420 RSMo 1949, V.A.M.S., was a compulsory counterclaim required to be filed, if at all, before judgment. See the recent case of Brinkmann v. Common School District, Mo.App., 238 S.W.2d 1, 5, affirmed by the Supreme Court in 255 S.W.2d 770. The present code of procedure does not contemplate that the defendant may submit such counterclaims as he may choose, allow judgment on the plaintiff's claim and on the counterclaims, then appeal therefrom, obtain a reversal of the judgment, thereby eliminating the plaintiff's claim, and then file, without leave, a substituted new cause of action by way of amended counterclaim which had accrued to him prior to the judgment reversed and then demand a trial thereof on its merits in the same action. Speaking of Section 509.060 allowing joiner of as many counterclaims as the defendant may have against the opposing party, it was said by Laurence M. Hyde and James M. Douglas, Judges of the Supreme Court, in their treatise on the present Code: "We must look at the whole picture. This section must be considered together with the provision for pretrial conferences where the various claims can be classified and a trial schedule mapped out and with the section ( 510.180 (2)) which gives the trial court power to order a separate trial of any claim, cross-claim, counterclaim or third party claim and, even in finer detail, a separate trial of any issue arising from such claims". Call, Missouri Civil Procedure, vol. 2, page 541. Such piecemeal submission of defendant's cross-claims between judgment and appeals would defeat the evident purpose of the code.
The order of the court dismissing defendant's amended counterclaim and motion to assess damages is affirmed.
BENNICK, P. J., and ANDERSON, J., concur.