Shannon Copper Co. v. Potter

CUNNINGHAM, J. The appellant seeks by this appeal to reverse a judgment recovered by it against the appellee on account of alleged errors committed upon the trial in receiving evidence in support of the defense, and in the instructions of the court presenting the defense in charge to the jury. A number of questions are urged upon this court in the briefs of appellant, but, from the view we take of the record, we are precluded from their consideration on this appeal. The cause was tried on the 29th of October, 1910, when the verdict was returned and the order for judgment was entered. In due time the appeal was perfected and filed in this court. On September 22,1911, appellant filed its additional ‘ ‘ opening brief” assigning numerous alleged errors, referring to the trial of the first cause of action, and, following the statement of the first cause of action, appears this reference to the second cause of action: “There was another cause of action stated in the complaint for the sum of $1,429.10, for $148.45 of which sum plaintiff obtained a verdict, and $1,280.65 of which sum the court took from the consideration of the jury, and refused to permit a verdict therefor on the grounds that plaintiff had not proved the same, though plaintiff claimed it was admitted by the answer. But this matter has been settled since the trial, and it is "therefore not in action.” What are we to understand from this statement of appellant? That the appellee has settled and satisfied the appellant’s judgment of [483] $148.45 rendered against appellee in this action? It can have no other meaning. Appellant states that the matters settled affect the second cause of action alone. We do not think so. The whole case was submitted to the jury, and the verdict returned is responsive to the issues submitted, and in terms is broad enough to meet all the issues raised upon both causes of action. The judgment is for $148.45 and is as broad as the verdict, and is therefore responsive to all the issues joined in the entire action. The two causes of action became merged in the judgment. It is admitted that the judgment has been settled since the trial. The law is well settled that a party cannot receive satisfaction of a judgment in his own favor and thereafter prosecute his appeal from the same judgment in the hope of obtaining a more satisfactory one. Cassell v. Fagin, 11 Mo. 207, 47 Am. Dec. 151; Robards v. Lamb, 76 Mo. 192; Wolfort v. Reilly, 133 Mo. 463, 34 S. W. 847; Watkins v. Martin, 24 Ark. 14, 81 Am. Dec. 59; In re Baby, 87 Cal. 200, 22 Am. St. Rep. 239, 25 Pac. 405. We think the settlement of the judgment extinguished all the matters in controversy between the parties to this appeal and leaves nothing for the decision of this court. It may not be improper, however, to say that we have examined the record in the light of the assignments urged by appellant and see no prejudicial error therein. For the reasons stated, viz., that the judgment is admitted by appellant to have been settled since the trial of the cause, ike appeal is dismissed. FEANKLIN, C. D, and BOSS, J., concur. NOTE.—As to waiver of appeal or right of review, see note in 13 Am. Dec. 546.