Davis v. Baum

This is an action by plaintiffs, E.C. Baum and C. Dyer, against the defendants, E.D. Davis and A.A. Davis, doing business as A.A. Davis Company, upon a foreign judgment. From a judgment for the plaintiffs against E.D. Davis only, the latter appeals.

The material facts are these: Defendants entered into a contract with the State Highway Commission of Missouri for the construction of a given strip of concrete highway. Subsequently defendants entered into a subcontract with plaintiffs whereby plaintiffs were to do the subgrading, paving, and shouldering work on a part of said highway. The parties were unable to arrive at a final adjustment of their accounts, and an action was instituted by the plaintiffs in the circuit court of Jackson county, Mo., to recover the balance claimed to be due. The petition was in six counts and the answer of defendants set up certain counterclaims. The cause was tried by a referee, whose findings were in favor of plaintiffs on each of the six counts of the petition and against defendants on their counterclaims. The trial court approved the referee's report, and on January 17, 1931, entered a judgment for plaintiffs for $24,043.76. From that judgment the defendants appealed to the Supreme Court of Missouri. They did not supersede the judgment.

On July 9, 1935, the Supreme Court of Missouri rendered a decision, 85 S.W.2d 757, the last paragraph of which is as follows:

"We have reviewed the several matters in controversy herein and as stated during the course of this opinion affirm the judgment of the trial court on the various issues except in the instances noted as to which and to the extent indicated the judgments on the first and second counts are reversed and remanded for further proceedings in the trial court in conformity with this opinion to the end that the proper judgment may be arrived at on each of said counts and the aggregate judgment corrected accordingly."

And the mandate provided that:

"The said cause be remanded to the said circuit court of Jackson county for further proceedings to be had therein in conformity with the opinion of this court herein delivered."

On August 19, 1935, the following minute was entered in the trial court:

"Now on this day the mandate of the Supreme Court of Missouri affirming in part and reversing and remanding in part is now filed herein."

Plaintiffs, on August 2, 1939, filed a dismissal of the second count and a full concession of the counterclaim based on underhaul involved in the first count, and a motion for final judgment in accordance with the mandate. On September 9, 1939, the circuit court entered a judgment providing:

"It is therefore ordered, adjudged and decreed by the court that the plaintiffs do have and recover of and from the defendants the sum of Thirteen Thousand Four Hundred Eighty Nine and 59/100 Dollars, ($13,489.59) with interest thereon from this date at the rate of six per cent (6%) per annum, and for costs of this action, (except costs allowed defendants in the Supreme Court of Missouri) and hereof let execution issue."

Plaintiffs, on October 28, 1939, commenced this action to recover upon the judgment of September 9, 1939. A.A. Davis was not served, and made no appearance. The district court of Oklahoma county rendered a judgment for plaintiffs and against the defendant E.D. Davis in the sum of $15,096.97, from which judgment E.D. Davis appeals. He testified that he has been a resident of Oklahoma county continuously since 1910.

Defendant Davis pleaded and here relies upon the one-year statute of limitations, subdivision 4, sec. 101, O. S. 1931, 12 O.S.A. § 95. He contends: (1) That plaintiffs owned and were in control of a legally enforceable foreign judgment against defendant, entered January 17, 1931, for the very indebtedness sued for here for more than the statutory period of limitations; and (2) that the journal entry of September 9, 1939, did not represent a new and independent judgment of the circuit court of Jackson county, Mo., but was a restatement of a portion of the previous judgment of that court as subsequently affirmed by the Supreme Court of Missouri, or at most was only a recitation of a judgment of the Supreme Court of Missouri, entered July 9, 1935, as evidenced by that court's mandate and opinion filed in the circuit court on August 19, 1935.

These contentions are interrelated, and present but a single question for decision, namely, Was the judgment of September 9, 1939, a new and final judgment which the circuit court of Jackson county had power and authority to render? If it was, the action is not barred, since it was commenced within one year from the date of the rendition of the judgment.

The judgment of January 17, 1931, from which the appeal was taken, was an aggregate or lump sum judgment. The fact that the journal entry recited the various findings of the referee did not make the judgment separable as to each finding.

"A judgment is distinct, not only from the verdict returned by the jury, but also from the findings of the court, even though such findings are incorporated in the same instrument with the judgment." 30 Am. Jur. 823.

See, also, Lee v. Epperson, 168 Okla. 220, 32 P.2d 309; 33 C. J. 1051; 15 R.C.L. 570; Freeman on Judgments (5th Ed.) § 3.

The pertinent parts of the mandate and opinion of the Supreme Court of Missouri are set forth above. That court affirmed the judgment of the lower court as to certain items which entered into the judgment, reversed it as to others, and remanded the cause for further proceedings in conformity with the opinion. The opinion required the lower court to retry the case involving the items as to which the judgment was reversed, and to enter a corrected aggregate judgment composed in part of the items as to which the judgment was affirmed.

The laws of Missouri are neither pleaded nor proven, and we therefore assume that so far as they are pertinent to the issues involved they are the same as those of this state. Hinds v. Atlas Acceptance Corporation, 178 Okla. 474, 63 P.2d 29. By section 549, O. S. 1931, 12 O.S.A. § 975, the Supreme Court may reverse a case in whole or in part. On reversal, either in whole or in part, it may, at its option, render such judgment as the trial court should have rendered, or it may remand the cause to the court below for such judgment. Defendant contends that where the Supreme Court affirms a judgment in part and reverses it in part, the part affirmed is not affected by the reversal of the other part, but becomes final as of, and relates back to, the date of its rendition in the court below. While an affirmance in part and reversal in part may in some cases be given such effect, we think much depends upon the nature of the case in which the judgment was rendered, and upon the kind of judgment rendered.

The law contemplates but one final judgment in an action. Consolidated School District No. 15 of Texas County v. Green,180 Okla. 567, 71 P.2d 712; Wells v. Shriver, 81 Okla. 108,197 P. 460.

It is true that in a number of cases this court has reversed in part and affirmed in part the judgment of the lower court. See Allen v. Allen, 85 Okla. 240, 205 P. 504; Morton v. Roberts, 88 Okla. 263, 213 P. 297; Norris v. Hare,126 Okla. 214, 259 P. 532; Fuqua v. Watson, 172 Okla. 624, 46 P.2d 486; Kapsemalis v. Douglas, 177 Okla. 522, 61 P.2d 211; Leeper, Graves Co. v. First Nat. Bank, 26 Okla. 707, 110 P. 655. But in all these cases it is to be noted that the judgment was composed of several distinct and separate parts, either as to the subject matter or as to the parties involved, and the affirmance was as to one separable and independent part and the reversal as to another. The action upon which the judgment in the present case was rendered was upon an account, composed of numerous items, but of such a nature as to require one judgment. The mandate and opinion of the appellate court, if given the effect contended for by defendant, would result in two different money judgments rendered on different dates between the same parties in the same action, although the action was brought for one judgment for the whole debt. The confusion resulting from such procedure is obvious, for if two judgments may be so rendered in a given case, a greater number would be permissible, and an action for one debt might result in as many judgments as there are causes of action or contested items involved. The law does not contemplate such a procedure, nor do the mandate and opinion of the Supreme Court of Missouri direct it, or indicate that such a result was intended.

The mandate of the appellate court is the official mode of communicating its judgment to the inferior tribunal. Pyle v. Pennington Grocery Co., 187 Okla. 133, 101 P.2d 847. When such mandate is issued, it is the duty of the lower court to comply therewith, interpreting the mandate in the light of the appellate court's opinion. Take v. Woodruff, 150 Okla. 73,300 P. 698.

The trial court correctly construed the mandate and opinion as reversing and remanding the cause for a new trial, but specifically limiting the new trial to certain issues, as is frequently done. Holbrook v. Moore, 177 Okla. 173,58 P.2d 865; Yazoo Mississippi Valley R. Co. v. Scott, 108 Miss. 871, 67 So. 491, L.R.A. 1915E, 239, and note; 4 C. J. 1194; 5 C.J.S. 1448; 2 R.C.L. 287; 3 Am. Jur. 724. When the mandate was filed and spread of record in the lower court, the judgment of January 17, 1931, necessarily lost its force and vigor as a judgment. Jefferson v. Rust, 155 Iowa 133, 135 N.W. 613; Farquharson v. Fresno Oil Co., 9 F.2d 515. It was therefore the duty of the circuit court of Jackson county, upon receipt of the mandate and opinion of the Supreme Court, to retry the issues remaining undetermined, and render a corrected judgment, which when entered became and was the final judgment in the case. Fox v. Hale Norcross, Silver Min. Co., 112 Cal. 568, 44 P. 1022. The fact that plaintiffs dismissed the second count of their petition, and agreed that defendants should be allowed the full amount claimed by them on their counterclaim to the first count, did not change the duty of the trial court to enter a new and corrected judgment, nor did it reinstate in part the first judgment. Jefferson v. Rust, above; Farquharson v. Fresno Oil Co., above. Thus the judgment of September 9, 1939, became the final judgment in the case.

Defendant also cites cases holding that where the judgment is not superseded, execution may be issued or suit brought upon it from and after the date of entry, and that therefore the second judgment being for the exact amount of the items affirmed by the Supreme Court of Missouri, the effect of the action of that court, and of the action of the lower court, was an affirmance of the first judgment, and the action is therefore barred. See Bank of Stockham. v. Weins, 12 Okla. 502, 71 P. 1073, Cales v. Smith, 180 Okla. 315, 69 P.2d 384, and other cases holding that the affirmance of a judgment makes it valid from the date of rendition. These authorities would be in point if the judgment had been affirmed. But defendant cites no case, and we have found none, holding that where, as here, the Supreme Court remands a case for further proceedings which must result in another judgment, a failure to bring an action on the first judgment bars an action on the second.

Defendant seeks to bolster his position by calling attention to the rule that a reversal in part does not affect the lien of the judgment, also to the rule that the surety on a supersedeas bond is not exonerated by a reversal in part. These principles have no bearing upon the question involved in the instant case.

Defendant argues that plaintiff was guilty of laches in failing to procure speedy action in the circuit court after the mandate was filed. But such action could have been procured by defendant if delay was prejudicial to his rights.

Affirmed.

WELCH, C. J., CORN, V. C. J., and OSBORN, GIBSON, and DAVISON, JJ., concur. ARNOLD, J., dissents. RILEY and BAYLESS, JJ., absent.

On Rehearing.