Summary
In Shoush v. Truitt, 235 S.W.2d 859, 861, Bour, Commissioner of the Kansas City Court of Appeals, with the concurrence of the other Commissioner and all of the Judges of that Court, said: "The right of appeal is purely statutory, and where the statutes do not give such right, it does not exist."
Summary of this case from State v. TravisOpinion
Opinion delivered January 8, 1951.
1. — Appeal and Error. The right of appeal is purely statutory and where the statute does not give such right it does not exist.
2. — Appeal and Error. Under statute providing for appeal from any final judgment and from certain specified interlocutory orders and judgments, but not providing for an appeal from an order overruling a motion for judgment in favor of a defendant, defendants could not appeal from orders overruling their after-trial motions for judgment. Mo. R.S.A. section 847.126.
3. — Appeal and Error. Notice of appeal which can reasonably be construed as an attempt in good faith to appeal from a final judgment or appealable order shall be deemed sufficient, even though an unappealable order is designated therein. Mo. R.S.A. section 847.126.
4. — Appeal and Error. Trial court having overruled all of defendants' after-trial motions for judgment, and having sustained their alternative motions for a new trial of the issues joined on count one, the judgment was not a final judgment as to count one, and defendants were not entitled to appeal therefrom since defendants were granted a new trial as to count one. Mo. R.S.A. section 847.126, section 1236.
5. — Appeal and Error. A judgment must dispose of all parties and all issues to be a final judgment for the purposes of appeal. Mo. R.S.A. section 1236.
6. — Judgment. There can be but one final judgment in a case no matter how many counts there may be in the petition.
7. — Trial. The Civil Code of 1943 authorizes separate trials of claims, counterclaims, cross-claims, third party claims and particular issues. Mo. R.S.A. sections 847.16(b), 847.17(a), 847.79, 847.97(b), 847.103.
8. — Appeal and Error. Plaintiff's claims and defendants' counterclaims all having been tried together at the same time, and no order for separate trial of the various claims was requested, Supreme Court rule providing that when a separate trial is ordered, separate judgment entered therein shall be deemed a final judgment for the purposes of appeal within the meaning of the statute, was not applicable. Rules of Supreme Court rule 3.29; Mo. R.S.A. section 847.116.
9. — Appeal and Error. Since trial court sustained defendants' motion for new trial on the issue joined on the first count, but overruled defendants' motion for new trial as to second count, and no order for separate trial of various claims and counterclaims as authorized by statute, was requested, the rights and liabilities of the parties with respect to the first count and counterclaim thereto remained undetermined, and there was no final judgment disposing of all counts and counterclaims, and defendants appeal being premature is dismissed.
Appeal from Circuit Court of Adair County. — Hon. Tom Brown, Judge.
APPEAL DISMISSED.
Roland A. Zeigel and Jayne Jayne for appellants.
Where respondent charges fraud in the procurement of a contract he may either sue in equity to rescind the contract or may tender back to the other party the benefits he has received under the contract and then sue at law for the return of the consideration he has paid, or he may affirm the contract and treat it as subsisting and sue for damages. Brown v. South Joplin Lead and Zinc Mining Company, 132 S.W. 693, 231 Mo. 166; McClain v. Parker, 129 S.W. 500, 229 Mo. 68; National Theater Supply Company v. Rigney, 130 S.W.2d 258. Respondent in this action chose to affirm the contract and to sue for damages. Brown v. South Joplin Lead and Zinc Mining Company, supra; McClain v. Parker, supra; Johnston v. Bray, 31 S.W.2d 198. Parol evidence is not admissible to vary or contradict the terms of this written contract or to substitute an oral contract therefor, but such evidence is only admissible to prove the instrument itself was a fraud or that respondent's signature thereto was procured by fraud. Fischman-Harris Realty Company v. Kleine, 82 S.W.2d 605; 32 C.J.S., Sec. 979 (d). The court erred in failing to direct a verdict for the appellants on the first count of respondent's petition for the reason that there was no evidence from which a jury could determine the amount of respondent's damages, if any. Lee v. Armour Bldg. Co., 18 S.W.2d 102; Carter v. Zollinger, 85 S.W.2d 189, 231 Mo. App. 1153; Orlann v. Laederich, 95 S.W.2d 190, 338 Mo. 783.
Lawson Romjue, and Philip J. Fowler, for respondent.
Respondent in count one of his petition stated a cause of action in fraud and deceit. Smithpeter v. Mid-State Motor Co., 74 S.W.2d 47 (K.C. App., 1934); Gockel v. Gockel, 66 S.W.2d 867 (Mo. Sup., 1933). Respondent in count one of his petition did not sue upon the contract but sought damages for the fraud and deceit of appellants in inducing the execution of the contract. Smithpeter v. Mid-State Motor Co., supra. It is the settled law of this State that the parol evidence rule has no application where a plaintiff alleges fraud inducing the execution of the contract. Clancy v. Reid Ward Motor Co., 237 Mo. App. 1000, 170 S.W.2d 161; National Theatre Supply Co. v. Rigney, 130 S.W.2d 258 (K.C. App., 1939); Rice v. Lammers, 65 S.W.2d 151 (St. L. App., 1933). Even though the contract contains a specific provision that no representations, statements and so forth not therein contained have been made. National Theatre Supply Co. v. Rigney, 130 S.W.2d 258 (K.C. App., 1939); Smithpeter v. Mid-State Motor Co., supra; Harry E. Arnhold et al. v. National Aniline and Chemical Company, 20 F.2d 364, 56 A.L.R. 4. A written contract cannot be pleaded or proved as a defense in such a suit. Smithpeter v. Mid-State Motor Co., supra. Defendants (appellants) waived, by the introduction of evidence on his behalf, any issue concerning their peremptory instruction offered and refused at the close of plaintiff's (respondent's) evidence. Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601 (1946); Ellis v. Kansas City Public Service Co., 203 S.W.2d 475 (K.C. App., 1947); Waltermire v. Stuart et al., 222 S.W.2d 945 (K.C. App., 1949). This Court must take plaintiff's reasonable evidence as true, must consider all evidence favorable to plaintiff, must give plaintiff the benefit of all favorable inferences arising from all the evidence, regardless of who introduced it, and unfavorable inferences must be rejected. Holmes v. McNeil, 356 Mo. 763, 203 S.W.2d 665 (1947); Kasperski v. Rainey, 135 S.W.2d 11 (St. L. App., (1940); Lowry v. Mohn, 195 S.W.2d 652 (Mo. Sup., 1946).
Plaintiff-respondent brought this suit by filing a petition in two counts. Each count purports to state a separate and distinct cause of action against defendants-appellants. In view of the conclusions which we have reached in this case it would serve no useful purpose to state the contents of the pleadings, which are quite lengthy and involved.
The record shows that defendants moved to dismiss both counts of the petition, and filed an answer and counterclaim to the first count. Defendants also filed an answer and counterclaim to the second count of the petition. The motions to dismiss were overruled and the case proceeded to trial before a jury. At the close of plaintiff's evidence and again at the close of all the evidence, defendants moved for a directed verdict as to both counts. These motions were overruled. On February 1, 1950, the jury returned a verdict for plaintiff on the first count, and assessed his actual damages at $298.18, and punitive damages at $300; and the jury also found for plaintiff on the second count and assessed his damages at $150, the verdict being against defendants on both of their counterclaims. On the same day, February 1, 1950, there was entered of record the following judgment (omitting formal parts): "It is therefore ordered, adjudged and decreed that the plaintiff have and recover from the defendants the sum of $598.18 on the first count of the petition and the sum of $150.00 on the second count of the petition, in all the sum of $748.18, together with the costs of this action and that execution issue therefor."
On February 9, 1950, defendant filed (1) a motion for judgment on the first count and for judgment on their counterclaim to the first count; (2) a motion for judgment on the first count in accordance with their motion for a directed verdict; (3) a motion for judgment on the second count and for judgment on their counterclaim to the second count; and in the alternative (4) a motion to set aside "the verdict of the jury rendered in favor of the plaintiff on the first count of his petition and rendered in favor of plaintiff on the counterclaim to the first count of his petition," and to have the court "grant a new trial of all the issues joined in said count of said petition * * *"; (5) a motion "to set aside the verdict of the jury on the second count of plaintiff's petition and on the counterclaim thereto," and to have the court "grant defendants a new trial of the issues therein * * *." The motions for a new trial set forth several grounds of alleged error, including the ground that the court erred in refusing to sustain defendants' motions for directed verdict at the close of all the evidence.
On February 28, 1950, the trial court overruled all of the above motions except defendants' alternative motion for a new trial of the issues joined on count one, which was sustained.
Thereafter, and on March 6, 1950, the defendants filed their notice of appeal. Omitting caption and signatures, defendants' notice of appeal is as follows: "Notice is hereby given that Charles Truitt and Archie Truitt, d/b/a Truitt Brothers Motor Company, defendants above-named, hereby appeal to the Kansas City Court of Appeals of Missouri from the judgment on the first count denying defendants' motion for directed verdict on the first count of plaintiff's petition and on defendants' counterclaim thereto, and from the judgment on the second count of plaintiff's petition and defendants' counterclaim thereto, all as entered in this action on the 28th day of February, 1950 (insofar as the overruling of motions on the first count is concerned) and on the 20th day of January, 1950 as regards second count."
The plaintiff did not appeal from the order granting defendants a new trial on count one.
Defendants contend that plaintiff did not make a submissible case on either count of his petition and, therefore, that the trial court erred in overruling defendants' motions for directed verdict and their after-trial motions for judgment. It appears from the record, however, that we cannot consider these contentions, whether meritorious or not, for the reason that there was no order, judgment or decision of the trial court from which defendants were entitled to appeal.
The notice of appeal refers to judgments entered on January 20, 1950 and February 28, 1950. No judgments were entered on those dates. The only judgment in the case was entered on the date of the verdict, February 1, 1950. Furthermore, no order was entered on January 20, 1950. No doubt the reference to the last-mentioned date was inadvertent. Defendants' motion for a directed verdict at the close of all the evidence was overruled on February 1, 1950. However, all of defendants' after-trial motions for judgment were overruled on February 28, 1950, a date referred to in the notice to appeal. It would seem, therefore, that defendants attempted to appeal from the orders overruling their motions for judgment.
The right of appeal is purely statutory, and where the statutes do not give such right, it does not exist. Tevis v. Foley, 325 Mo. 1050, 30 S.W.2d 68. Section 126, Civil Code, Laws 1943, p. 390 Mo. R.S.A. sec. 847.126, provides for an appeal "from any final judgment in the case," and from certain specified interlocutory orders and judgments. But it does not provide for an appeal from an order overruling a motion for judgment in favor of a defendant. Hence the defendants in the present case could not appeal from the orders overruling their after-trial motions for judgment. Section 126 makes no provision for an appeal by defendants under the facts of this record, unless the judgment entered by the trial court on February 1, 1950, was a "final judgment in the case." While defendants evidently attempted to appeal from the orders overruling their motions for judgment, the Supreme Court has held that a notice of appeal which can reasonably be construed as an attempt in good faith to appeal from a final judgment or appealable order shall be deemed sufficient, even though some unappealable order is designated therein. Weller v. Hayes Truck Lines, 355 Mo. 695, 197 S.W.2d 657, 660, en Banc. Assuming, then, that defendants' notice of appeal shows an attempt in good faith to appeal from the judgment entered on February 1, 1950, the question arises whether that judgment was a final judgment in the case.
As stated, the trial court overruled all of defendants' after-trial motions for judgment. But the court sustained defendants' alternative motion for a new trial of the issues joined on count one. In Bailey v. Interstate Automotive, Inc., 358 Mo. 1121, 219 S.W.2d 333, the trial court overruled defendants' motion for judgment in accordance with defendants' motion for a directed verdict made at the close of all the evidence, but defendants' motions for a new trial were sustained. The plaintiff appealed from the orders granting a new trial and defendants appealed from the orders overruling their motions for judgment. In dismissing the defendants' appeals, the Supreme Court said (219 S.W.2d l.c. 335): "We are of the opinion defendants' appeals should be dismissed. Section 126, Civil Code of Missouri, Laws of Missouri 1943, p. 390, Mo. R.S.A. sec. 847.126, does not provide for an appeal from an order overruling a motion for judgment for defendant. There was no finality of action by the trial court in overruling such motions as authorized appeals. Had defendants' motions for a new trial been overruled, the judgment rendered upon the verdict for plaintiff would have been final, and would have supported appeals by defendants. But the trial court sustained defendants' motions for a new trial, and so defendants were not and are not aggrieved by any appealable final order of the trial court adverse to them. Section 126, Civil Code of Missouri, supra; Vol. 1, Carr Missouri Civil Procedure, sec. 812, at page 868; Vendt v. Duenke, Mo. App., 210 S.W.2d 692; Long Mercantile Co. v. Saffron, Mo. App., 104 S.W.2d 770."
In view of the decision in the Bailey case, it is clear that the judgment of February 1, 1950 was not a final judgment as to count one, since defendants were granted a new trial on the first count. So far as the plaintiff in the present case is concerned, he was, of course, entitled to appeal from the order granting defendants a new trial (Civil Code, Sec. 126), but he did not do so.
The question remains, however, whether the judgment of February 1, 1950 was a final judgment as to the issues joined on the second count. As stated, the trial court overruled defendants' motion for a new trial on the second count. Section 1236, R.S. Mo. 1939, Mo. R.S.A. sec. 1236, defines a judgment as follows: "A judgment is the final determination of the right of the parties in the action." Section 1236 has not been repealed by the new Civil Code. It has been repeatedly held by our Supreme Court and the Courts of Appeals that a judgment must dispose of all parties and all issues in the case to be a final judgment for the purposes of appeal. White v. Sievers, 359 Mo. 145, 221 S.W.2d 118; Magee v. Mercantile-Commerce Bank Trust Co., 339 Mo. 559, 98 S.W.2d 614, citing many cases; Webster v. Sterling Finance Co., Mo. Sup., 165 S.W.2d 688; Staples v. Dent, Mo. App., 220 S.W.2d 791. And it has been held that there can be but one final judgment in a case, no matter how many counts there may be in the petition. Magee v. Mercantile-Commerce Bank Trust Co., supra; Webster v. Sterling Finance Co., supra; Russell v. St. Louis Suburban Ry. Co., 154 Mo. 428; Dixon v. St. Louis Transit Co., 197 Mo. App. 646, 198 S.W. 431; Gann v. Dearborn Mfg. Co., 129 Mo. App. 425, 107 S.W. 15. In this respect, the new Civil Code and the rules of the Supreme Court have made no change in procedure from that which was provided in the old Civil Code, except as stated below. Stone v. Boston, Mo. App., 218 S.W.2d 783; Severs v. Williamson, Mo. App., 198 S.W.2d 368.
The law as stated above has been modified to a certain extent by the new Civil Code and particularly by Supreme Court Rule 3.29. The Civil Code of 1943 authorizes separate trials of claims, counterclaims, cross-claims, third party claims, and particular issues. Laws 1943, pp. 353, 397, secs. 16(b), 17(a), 79, 97(b), 103, Mo. R.S.A. 847.16(b), 847.17(a), 847.79, 847.79(b), 847.103. Section 116, Civil Code, provides: "The judgment shall be entered as of the day of the verdict." Supreme Court Rule 3.29 provides that when "a separate trial of any claim, counterclaim or third party claim is ordered in any case and a jury trial thereof is had, the separate judgment entered upon the verdict therein shall be deemed a final judgment for the purposes of appeal within the meaning of Section 126." The rule also provides that in case "a separate final judgment is entered the court may stay its enforcement until other or all final judgments in the cause are entered and may prescribe such conditions as are necessary to secure and protect the relative rights of all parties." See Harper v. St. Joseph Lead Co., Mo. Sup., 233 S.W.2d 835; Vol. 2, Carr Missouri Civil Procedure, sec. 860, p. 45. In the instant case no order for separate trials of the various claims and counterclaims, as authorized by Section 97(b), supra, was requested by any of the parties. The plaintiff's claims and defendants' counterclaims were all tried together at the same time; and the court entered a single judgment on February 1, 1950. It is obvious that the record in this case does not bring it within the provisions of Supreme Court Rule 3.29. See Severs v. Williamson, supra; S.S. Kresge Co. v. Shankman, Mo. App., 194 S.W.2d 716. Consequently, we must apply the law as stated in the preceding paragraphs.
Since it appears from the record that the trial court sustained defendants' motion for a new trial of the issues joined on the first count of the petition, the rights and liabilities of plaintiff and defendants, with respect to the first count of the petition and the counterclaim thereto, remain undetermined in the trial court. There being no final judgment in the case disposing of all of the counts and counterclaims, the cause is still pending in the circuit court. It follows that defendants' appeal was premature and should be dismissed. Sperry, C., concurs.
The foregoing opinion of BOUR, C., is adopted as the opinion of the court. The appeal is dismissed. All concur.