Esler v. Wabash Railroad

BEOADDUS, P. J. — This case was before this court on appeal and is reported in 109 Mo. App. 580. The cause was reversed with directions to the trial court to enter a judgment on the verdict. When the cause came up again before the trial court, defendant offered to file an amended answer, which offer the court refused, and entered up judgment for $1,450, the amount of the verdict, as directed by the mandate of this court. Defendant again appealed and has filed an abstract in which is contained the evidence and proceedings of the former trial. The plaintiff has filed in this court a motion to either dismiss the appeal or affirm the judgment with ten per cent damages. The effect of the decision on the former appeal was to overrule the motion for a new trial and direct a judgment thereon. It cannot be contended successfully that after a verdict against it defendant had the right to interpose an amended answer, which would have the effect to avoid the verdict and prevent a judgment thereon. Before a verdict, defendant, on proper showing, would have been permitted to amend its answer. But we can assign no good reason to authorize a litigant, after he has submitted his case upon the issues raised by the [577] pleading and a verdict against him thereon, to file an amended pleading. The code permits amendments in the interest of justice in support of verdicts. But the proposed amendment was to do away with the verdict entirely. The trial court had only one duty to perform, that to render a judgment as directed by the mandate. From the judgment so rendered defendant appealed. The only record before us is the record on the former appeal, and all the matters therein are res adjudicaba. The appellant was entitled to an appeal from the final judgment. [Sec. 806, R. S. 1899.] We are not authorized to dismiss the appeal. But for the reason that all matters raised by the record have been adjudicated, the cause is affirmed. From the manner in which the appellant has prosecuted its appeal we are impressed with the conviction that it has acted in good faith, and such being the case, we are not disposed to impose any penalty upon the ground that the appeal was frivolous. All concur.