State Ex Rel. Dolman v. Dickey. , 288 Mo. 92 ( 1921 )

On November 8, 1916, relator filed, in the Circuit Court of Buchanan County, Missouri, a petition for mandamus to compel respondents to issue and deliver to him certain tax bills, to pay for the construction of pavement on a street in St. Joseph, Missouri, a city of the first class. The relator is the assignee of the Standard Construction Company, the contractor in performance of the work. Respondents made return and the circuit court aforesaid, after hearing the evidence, foundStatement. the issues in favor of relator and granted a peremptory writ. Said defendants, in due time, appealed the cause to this court. Upon a hearing of the case, we reversed it outright, as shown in the opinion of Commissioner White, reported in 219 S.W., at pages 363 and following. Relator filed in this court a motion for re-hearing. In support of said motion, this court was requested to hold, that the contract mentioned in petition was severable, and that the work on thesidewalk and curbing mentioned therein, was substantially complied with, etc. Thereupon, at the instance of relator (219 S.W. 368), the opinion of Commissioner WHITE was modified and the cause remanded, in order that the trial court might ascertain whether the construction of the curbing and sidewalk was in accordance with said contract, and could be separated from the paving, in determining the price to be paid for same, etc. The motion for re-hearing, after said modification, was thereupon overruled. Upon the filing of the opinion and mandate of this court in the circuit court aforesaid, the latter proceeded to dispose of the case upon the petition and return aforesaid under the directions of this court for the purposes aforesaid.

It appears from defendants' bill of exceptions herein that relator, in the re-trial of the case, offered in evidence thebill of exceptions and record in the case made up at the formertrial. Other evidence was offered by relator in support of his contention.

On March 29, 1920, the circuit court entered the following judgment after said re-trial:

"Now on this day comes the plaintiff by John E. Dolman its attorney and also come the defendants, by C.W. Meyer, their attorney and the mandate and opinion of the Supreme Court in said cause, remanding the same to this court for further proceedings with reference to the sidewalk, curb, and driveways, having been filed and the said cause in accordance with said opinion, now coming on to be heard and the record upon the former trial of this cause, the bill of exceptions and the original contract having been introduced in evidence and the court having heard the arguments of counsel and being fully advised in the premises, finds that the sidewalks, curbing and driveways can be separated from the paving of the roadway and that the prices therefor are different from the price charged for said driveway, to-wit: For all curbing taken up and reset per linear foot, fifteen cents. For new (artificial concrete stone) curbing furnished and set per linear foot, forty-four cents. For (artificial concrete stone) sidewalk per square foot, fourteen cents and for concrete driveways per square foot, twenty cents.

"And the court further finds that all of said sidewalks, curbing and driveways were constructed in accordance with the contract and that plaintiff is entitled to have tax bills issued therefor according to the terms of said contract, but that under said decision of the Supreme Court, plaintiff is not entitled to have tax bills issued in payment for the paving of the roadway provided for in said contract.

"IT IS THEREFORE ordered, considered and adjudged that a peremptory writ of mandamus issue against said defendants and against the Board of Public Works of the City of St. Joseph as now constituted and the City Engineer of said city, commanding them to issue and deliver tax bills to said John E. Dolman, relator herein, for all sidewalks, curbing and driveways constructed under said contract, in accordance with the prices contained therein and that the City Engineer certify, authenticate and sign the same to the end that the same may be established as a lien against the several pieces and parcels of land liable for such improvement.

"That plaintiff have and recover interests on said tax bills at the rate of 8% per annum from the date of his demand therefor, to-wit, January 27, 1915, and that said relator have and recover of said defendants his costs in this behalf expended and hereof let execution issue."

On April 2, 1920, defendants filed a motion for a new trial, which was overruled on April 14, 1920. Defendants, in due time and in a proper manner, appealed to this court.

Relator filed no motion for a new trial, nor did he file anymotion in arrest of judgment. He filed an affidavit for appeal on April 24, 1920, and took leave to file a bill of exceptions during the May term, 1920, of said court.

Relator's affidavit for appeal, which was sustained, reads as follows:

"Comes now the relator, John E. Dolman, in the above entitled cause, and moves the court for an appeal to the Supreme Court of the State of Missouri. John E. Dolman, being first duly sworn on his oath states that he is the relator in the above entitled cause and that this appeal is not made for vexation or delay, but because he believes himself aggrieved and injured by the judgment of the court in this cause.

"J.E. DOLMAN.

"Subscribed and sworn to before me this 16th day of April, 1920," etc.

The respective appeals will be disposed of separately in the opinion.

1. Relator insists, that on the record aforesaid, he is entitled to have this court re-consider, the law of the case as declared in the opinion of Judge WHITE. It is true, that the Supreme Court, in a few cases, when properly presented, has reconsidered its former ruling on the second appeal, but such practice is an exception to the generalSecond Appeal: rule, and is not to be encouraged.No Bill of Exceptions According to our conception of the law,Record Proper. relator is in no position to ask at our hands a re-consideration of the former ruling, denying the writ of mandamus, for he is here, without any record upon which that matter can be considered.

We remanded the original case, at the instance and request of relator, in order to give him a chance to recover tax bills for the curbing and sidewalk, if the trial court should find that the contract was severable, etc. The jurisdiction of the circuit court upon a re-trial of the case, was limited solely to the above issue. In granting relator's request for a re-trial of the above matter, it was upon the theory, that the petition and writ were to be considered as amended, so as to deal alone with the above issue. Both court and counsel proceeded in the second trial upon this theory, as shown by the proceedings and judgment rendered. The record proper, then, in the second trial, consisted of the petition and writ as amended, the return of defendants, and the judgment heretofore set out. As shown by the record, relator offered testimony upon the re-trial of the case and, after judgment was rendered in hisfavor, upon the issues thus presented, he filed no motion for a new trial or in arrest of judgment, but simply filed the affidavit for appeal heretofore mentioned, and has sought to bring the case here without the evidence, or without any matters of exception, which may have occurred during the progress of the trial. It has long since become elementary law in this State, that in the absence of a motion for a new trial, and in arrest of judgment, nothing but the record proper, can be considered by the appellate court. [State v. Griffin, 98 Mo. l.c. 674-5; State v. Wray, 124 Mo. l.c. 542-3; State v. Handley, 144 Mo. l.c. 118-9; State v. Revely, 145 Mo. 660; Harding v. Bedoll, 202 Mo. 625; Stark v. Zehnder, 204 Mo. l.c. 449; Gilchrist v. Bryant, 213 Mo. 442; Groves v. Terry, 219 Mo. 595; State ex rel. v. Adkins, 221 Mo. l.c. 120; Hays v. Foos, 223 Mo. 421; Betzler and Clark v. James,227 Mo. 375; St. Louis v. Henning, 235 Mo. 44; Blanchard v. Dorman, 236 Mo. 416-7; Realty Co. v. Brewing Co., 247 Mo. 29; Haggerty v. Ruth, 259 Mo. 221; McKee v. Donner, 261 Mo. 378-9; Case v. Carland, 264 Mo. 463; State ex inf. v. Morgan, 268 Mo. l.c. 271; Tracy v. Tracy, 201 S.W. 902; Pennewell v. Pennewell, 204 S.W. 183; Hoskins v. Nichols, 213 S.W. 838; State v. Baugh, 217 S.W. l.c. 280.]

Numerous other authorities in this State, to the same effect, can be found reported.

The petition and writ, considered as amended, the return of defendants', considered as amended to correspond with same, and the judgment entered on the second appeal, constitute the record proper in this case, but not in the former proceedings. [State ex rel. Combs v. Staten, 268 Mo. l.c. 295-6, 187 S.W. l.c. 43-4.] As heretofore shown, there is nothing for review before us on relator's appeal, but the record proper and, having received all he asked for in this proceeding, he has no legal ground for complaint under the present appeal.

II. Relator's appeal is likewise without merit, for the obvious reason, that he has appealed from a judgment in his own behalf, without complaining of any errorJudgment for in the trial. No judgment was rendered against himAppellant. in the trial court, and he got all he claimed in the re-trial of the case.

III. The authorities cited by relator for re-opening the original controversy, as he has attempted to do by simply filing an affidavit for appeal in the second trial, do not sustain his contention. It will be found upon examination of the records in those cases where the original opinion was re-considered upon asecond appeal, that on the re-trial, the evidence was introduced as in the first trial, instructions asked, motions for new trial filed, etc. If the trial court____: Reconsidering refused to follow our ruling, thereOriginal Opinion: would be no necessity for a re-considerationProper Procedure. of the case on appeal, but if it followed our ruling, then the complaining party might again appeal, and we would then determine whether the original judgment should stand. In this orderly way of procedure, the trial court would not be ignored in the proceeding, and the whole record would be before us on the second appeal for our consideration.

In support of this conclusion, we call attention to the leading case in this State of Hamilton v. Marks, 63 Mo. 170 and following, cited and relied upon by relator. The case was formerly tried, and will be found reported in 52 Mo. at pages 78 and following. On a re-trial of the case, evidence was heard, instructions asked, and the case was again tried as formerly. This court then had before it, in the usual manner, the record and proceedings of the second trial, showing that the matters complained of were again before this court for its consideration.

We are not aware of any rule of legal procedure in this State, by which relator can have the original judg- and proceedings herein re-considered, as he has attempted to do in this case,on appeal from a judgment in his own favor, and that too, byignoring the trial court, and failing to produce for our consideration, the evidence andother proceedings had before the trial court.

IV. Judge WHITE's opinion (219 S.W. 363 and following), contains a very full statement of the facts, as they were presented in the original trial and, hance, it is not necessary to encumber this record with a reproduction of same. The evidence adduced by relator at the second trial, was amply sufficient to sustain the judgment rendered in the present case, if the contract can be construed asPublic Improvements: authorizing the severance made by the trialSeverable Contract. court in its judgment. We have examined the authorities cited by defendants in support of their contention, that the contract in controversy is notseverable, yet we do not think the weight of authority is with the defendants, respect to this matter. In our opinion, the principle of law which should apply in a case of this character, is very clearly and forcefully stated, in Amsler v. Bruner,173 Ill. App. 337-8, as follows:

"If the part of a contract to be performed by one party consists of several distinct and separate items, and the price to be paid by the other is apportioned to each item to be performed or is left to be implied by law, such a contract is in general severable, and the same rule holds where the price to be paid is clearly and distinctly apportioned to different parts of what is to be performed, though the latter in its nature is single and entire."

The principle of law above announced is supported by the following authorities: Keeler v. Clifford, 165 Ill. 544; Siegel v. Eaton Prince Co., 165 Ill. 550; Barlow Mfg. Co. v. Stone,200 Mass. 158, 160-1; Dibol Plank v. W. E.H. Minott,9 Iowa 403; Pierson v. Crooks, 115 N.Y. l.c. 554-5; Wooten v. Walters, 110 N.C. l.c. 255; Williams v. Robb, 104 Mich. 242, 246-7; 2 Parsons on Contracts (9 Ed.), sec. 4, pp. 672-3-4; Hammon on Contracts, sec. 463, p. 907; 13 Corpus Juris, sec. 528, par. 4, p. 563; 7 Am. Eng. Ency. of Law (2 Ed.), par. 4, p. 95; 3 Elliott on Contracts, sec. 2046, pp. 229-30-31, and cases cited.

The rulings of our appellate courts upon kindred questions, while not directly in point, are in line with the law as declared in above authorities. [Neil v. Ridge, 220 Mo. 233-257; Porter v. Construction Co., 214 Mo. l.c. 18; Haag v. Ward, 186 Mo. 325, 348; Reinert Bros. Const. Co. v. Whitmer, 206 S.W. l.c. 388; City of Maryville v. Cox, 181 Mo. App. l.c. 263-4; Joplin ex rel. v. Freeman, 125 Mo. App. 717, 722; City of Marionville to use v. Henson, 65 Mo. App. 397.]

It does not appear from the record before us, that defendants are liable to sustain any loss or damage should the judgment below be enforced. In our opinion, the ends of justice will best be subserved, by overruling defendants' contention.

V. In view of the conclusions heretofore reached, the judgment of the trial court, as to relator and defendants, is hereby affirmed. White and Mozley, CC., concur.