State ex rel. Missouri Pacific Railway Co. v. Broaddus

WOODSON, J. — This is a proceeding by mandamus, instituted by the relator against the respondents, judges of the Kansas City Court of Appeals, commanding them to transfer to this court the case of J. M. Partello against relator, the Missouri Pacific Railway Company, which was an appeal from a judgment of the circuit court of Jackson county in favor of said Partello and against said railway company. The facts of the case are undisputed, and are substantially as follows, as appears from the alternative writ, to-wit: On the 14th day of April, 1906, on the trial of the case of J. M. Partello v. The Missouri Pacific Railway Company, in the circuit court of Jackson county, Missouri, at Independence, the jurors returned a verdict for plaintiff in the sum of $5,500', and thereupon a judgment was immediately rendered and entered of record for plaintiff for said sum and interest thereon at the rate of six per cent per annum. ' On the 17th day of April, 1906, relator filed its motion for a new trial, and also its motion in arrest of judgment. On the 9th day of June, 1906, both of said motions were overruled, and relator excepted. [689] On the. 12th day of June, 1906, relator filed its motion to set aside the order overruling its motion for new trial. On the 5th day of July, 1906, during the pendency of the last-mentioned motion, plaintiff filed a remittitur of $1,000. On the 14th day of July, 1906, the following order was made and entered of record: “On Saturday, July 14th, 1906, being the twenty-sixth day of the June term, 1906, defendant’s motion to set aside order overruling motion for new trial was by the court sustained, and, it appearing to the court a remittitur of $1,000 from the verdict having been made, said motion for new trial is overruled and excepted to by defendant.” No new judgment was entered after the filing of said remittitur. On the 8th day of September, 1906, relator filed its application and affidavit for appeal and appeal bond. In said application, filed with said affidavit and bond,, it asked that the appeal should be granted to the Supreme Court; but the circuit court granted the appeal to the Kansas City Court of Appeals. On the 21st day of November, 1906, relator filed in said Kansas City Court of Appeals a certified copy of the judgment and order granting an appeal. On the 5th day of April, 1907, before any briefs had been filed or the cause had been submitted to said court, relator filed in said Kansas City Court of Appeals a motion setting up the facts herein set forth and asking that said cause be transferred to this court, which motion was by said Court of Appeals overruled. Afterwards said cause was submitted on briefs, and, on the 27th day of January, 1908, the judgment was affirmed by said Court of Appeals. On the 6th day of February, 1908, relator filed in said court its motion for rehearing, which motion was [690] overruled by said court, on the 17th day of February, 1908. On the 19th day of February, 1908, relator filed in said Court of Appeals another motion asking said court to transfer said cause to this court, which motion was by said court overruled, and thereupon relator presented to this court its petition for writ of mandamus to compel said court to transfer said cause to this court, as it had been requested to do. There is but a single question' presented by this record for our consideration, and that is one of law. It is the contention of the relator that it is necessary after a remittitur has been entered in a cause to set aside the judgment and to enter a new judgment for the amount of the verdict less the remittitur, and, if that is not done, the judgment stands in full force and effect, with a record credit thereon for the amount of the remittitur, which in this case would be $5,500 and interest thereon to the date of the remittitur, which amounts to $132, total $5,632, less $1,000, the remittitur —balance $4,632, which was the amount of the judgment as contended by relator on the day the remittitur was made and the appeal was allowed. Upon the other hand, the contention of the respondents is, that the entry of the remittitur impeaches and nullifies the judgment, and that the amount of the verdict should be credited by the amount of the remittitur, which in this case would be' $5',500 less $1,000, the amount of the remittitur — balance $4,500!, the sum for which a new judgment should have been entered by the circuit court. If relator’s contention is sound, then the amount of the judgment at the time the appeal was taken was for the sum of $4,632, which is in excess of the jurisdiction of the Kansas City Court of Appealsand should have been appealed to this court, and not to that; while, upon the other hand, if the respondents’ [691] contention is correct, the amount of the judgment was $4,500, which is within the jurisdiction of that court, and the appeal was properly taken to that court. If, as respondents contend, the entry of the remittitur nullified the judgment of the circuit court, and it is no longer in existence, then the plaintiff in the original case has no judgment at all against the defendant therein, for the reason that there is no pretense that a new judgment was entered on the verdict after the remittitur was made. The mere fact that he was entitled to have a judgment does not change the situation in the least. In the first instance, after the jury returned their verdict, he was entitled to a judgment thereon, but we hardly believe it would be seriously contended that he would be entitled to treat the right to have a judgment entered thereon to be a judgment in fact. And the same rule, and the reason therefor, would apply in this ease. And we repeat that if the entry of the remittitur set aside and nullified the judgment of the circuit court, then the plaintiff therein has no judgment against the relator here, the defendant ini that case. We are, therefore, of the opinion that the entry of the remittitur, without more, did not set aside or nullify the judgment of the circuit court, nor amount to the rendition 'and entry of a new judgment for the sum of the verdict, less the amount of the remittitur.• These views are in harmony with the decisions of this court in the following cases: This court at an early date, Schilling v. Speck, 26 Mo. 489, in discussing this question, said: “It does not appear that the judgment was corrected after the remittitur, but it was allowed to stand for the full amount of the verdict. It was the duty of the plaintiff to have seen that the judgment was properly entered. ’ ’ In the case of Haynes v. Trenton, 108 Mo. l. c. [692] 134, in discussing the question, Judge Gantt, who delivered the opinion of the court, said: “When a remittitur is entered, a new entry of the judgment for the amount should be made. We notice this was not done here-.” In the case of Real Estate Co. v. Heidbrink, 112 Mo. App. 429, pending motions for a new trial and in arrest of judgment, the plaintiff entered a voluntary remittitur of $35 of the damages assessed, but no new judgment was rendered. In that case the St. Louis Court of Appeals (1. c. 434), said: “The judgment was not corrected after the remittitur, as should have been done, but was allowed to stand for the full amount. For this reason the judgment will be reversed.” We are, therefore, of the opinion that the amount involved is $4,632, and that the Kansas City Court of Appeals has no jurisdiction to hear and determine the cause mentioned, and that the peremptory writ of mandamus should issue, and it is so ordered. All concur, except Valliant, Jabsent.