Connelly v. Illinois Central Railroad , 169 Mo. App. 272 ( 1912 )

CAULFIELD, J.

(after stating the facts). — I. The verdict and judgment said to be involved here now were in favor of plaintiff and against defendant Southern Railway Company for a sum of money, and against plaintiff and in favor of defendant Illinois Central Railroad Company. An appeal was prayed and allowed Southern Railway Company to the Supreme Court, while plaintiff prayed and was allowed an appeal to this court. Thus was created a situation which our Supreme Court has denounced as improper, saying, “Manifestly the same case cannot he pending in two appellate courts at the same time, although upon cross-appeals, for incongruous results might ensue from inconsistent judgments rendered by the two courts.” [Snoqualmi Realty Co. v. Moynihan, 179 Mo. 629, 634, 78 S. W. 1014.] This case illustrates the rule. When the Supreme Court transferred the case here on this, the Southern Railway Company’s, appeal, we had already, now more than four years ago, unreservedly reversed the very judgment from which that appeal, was taken, and had remanded the cause for retrial as to Illinois Central Railroad Company. If the two appeals had been before us at the same time, as the law contemplates, we might have affirmed the judgment against the Southern, absent prejudicial error in procuring it, but, in such event, we would not have remanded the case for retrial as to Illinois Central, for to do so would have been to authorize two judgments in the same cause or to sanction recovery against two defendants, where recovery against only one was permissible, as we shall hereinafter point out. In order for us to affirm the judgment against the Southern, the case must 'have been dismissed as to Illinois Central, so as to bring the case within the two conditions of the validity of a final judgment — that it must be single and dispose of all the parties’ thereto. [Holborn v. Naughton, 60 Mo. App. 100; Bremen Bank v. Umrath, 55 Mo. App. 43.] But that course is not now open, for the obvious reason that we have already reversed the judgment and remanded the cause for retrial as to Illinois Central, and that action of ours cannot now be recalled but constitutes a fixed fact which must govern our disposition of the matter now before us. "We can now do with the judgment as to Southern Railway Company only what is lawful and proper in view of what we have already done; only what we should have done then, taking it for granted, as we must — for we have irrevocably done it — that the judgment must have been reversed and the cause remanded for retrial as to Illinois Central, in accordance with the law of the case as declared by us.

Now, while the old idea of the entirety of a judgment against several defendants, in conformity to the spirit of the Code, has lost so much of its rigor that it may be said, as a general rule, that judgments or verdicts will not be set aside as to one defendant because of the necessity, for error or otherwise, of setting it aside as to another, still that rule does not affect the statutory one, that there can be only one final judgment in the case, nor does it contravene the corollary of the statutory rule, that such final judgment must dispose of all the parties to the cause, nor should it operate contrary to the law as it affects the substantial rights of the parties. [See Holborn v. Naughton, 60 Mo. App. 100; Wollman v. Loewen, 108 Mo. App. 581, 84 S. W. 166.] In the last cited case there had been a judgment against the maker and the indorser of a promissory note. The judgment had been reversed and the cause remanded for retrial as to the indorser, the maker not appealing. We held that the reversal operated as to both, the court, through an opinion written by Judge Goode, saying,/‘The order reversing the first judgment in this cause and remanding it for retrial was unqualified by a reservation that the judgment should be left standing against Bienenstock. It could not be thus left and a new trial be had to determine Loewen’s liability as indorser, as we directed should be done. Otherwise, in an action at law, there would be two valid final judgments; which the statutes forbid.” .

In the case at bar, we could not affirm the judgment as against Southern Railway Company and at the same time reverse it and remand for retrial as to the Illinois Central, because, if we would affirm the judgment as to the Southern, that would be one judgment, and to send it back for retrial as to the Illinois Central would authorize another, with the result that there would be two judgments in the same cause, which, as we have seen, is forbidden by statute; because, also, we heretofore declared, in effect, that plaintiff could recover only against one of these defendants, not against both (see Connelly v. Railroad, 120 Mo. App. 652, 97 S. W. 616), and to send it back for retrial as to one, while leaving the judgment or verdict standing as to the other, must of necessity recognize that plaintiff could recover against both. As we cannot do both — that is, cannot reverse and remand for retrial as to Illinois Central while leaving the judgment standing against the Southern — but must refrain from doing one if we do the other, it follows that, having already irrevocably reversed the judgment and remanded the cause for retrial as to Illinois Central Railroad Company, we cannot now lawfully affirm the judgment or leave the verdict standing as to the Southern Railway Company. For this reason the judgment as against the Southern Railroad Company will be reversed and the cause remanded.

The foregoing is not the view urged upon us by the briefs, but we conceive it to be our duty to refrain of our own accord from indulging in obvious error.

As the case is to be sent back, we deem it proper to say that, in our opinion, the original verdict of March 15, 1906, should be treated as still extant in favor of the Southern Railway Company, although we accept the finding of the trial court that the Southern was not included in the judgment entered on that verdict. As we have already indicated, it is the spirit of our Code that a verdict should not be set aside as to one because of error against another, if that result can be avoided consistently with. the statutory rules of procedure and without effecting any injustice or violating the law applicable to the case. This verdict, so far as it ran in favor of this defendant, was presumptively obtained without error after a fair trial, for plaintiff saved no excejDtion to the overriding of his motion for a new trial and took no appeal. A retrial as to the Southern was not in any wise necessary to the assertion or preservation of the substantial rights of any of the parties, for the plaintiff could not recover against both, and the verdict, returned after a fair trial, without error against plaintiff, negatived his right to recover from the Southern. There is no conceivable reason why the plaintiff should be allowed to try again an issue which has already been fairly tried and found against him and. from which he did not appeal. On the other hand, Illinois Central cannot complain that the Southern will not be involved in the retrial because it has no right of contribution against its codefendant in this case; the liability of the defendant’s being, not joint or joint and several, but several and exclusive — one not being liable if the other is.

The rule against two judgments does not intervene, for the reason that no judgment had been entered in favor of the Southern, and the finding, which is analogous to that on one cause of action where there are several in the case, will be suspended or held in abeyance until the case is ready for final judgment as to the other defendant, when all the parties may be disposed of in one judgment.

The foregoing being true, we see no justification for giving the reversal of the judgment of March 15, 1906 and the remandment of the cause on the appeal of the Illinois Central alone, the effect of setting aside the verdict in favor of the Southern Railway Company.

We may add that we do not believe that the plaintiff can make any point at this late day and after what-has occurred in the case, that the first appeal was premature because the original judgment did not dispose of all the parties. [Mann v. Doerr, 222 Mo. 1, l. c. 10, 17, 121 S. W. 86.]

The judgment is reversed and the cause remanded.

Reynolds, R. J., and Nortoni, J., concur.