McLaran v. Wilhelm

Eombaueb, P. J. — The record proper in this cause shows the following facts: Charles McLaran and Annie McLaran, his wife, filed a petition in the circuit court, in which they stated that they had a joint cause of action against the defendants for the recovery of $350, being the semi-annual rent reserved to them by a written agreement between themselves and said defendants. The defendants were served with summons to appear at the December term, 1891, and failed to appear. On the eleventh of December, an interlocutory judgment by default was entered against them. On the twenty-second day of that month, on motion of Annie McLaran, the cause was dismissed as to her coplaintiff, Charles McLaran, and an inquiry of damages was had, which resulted in a judgment in favor of the remaining plaintiff in the sum of $359.85, which judgment under the allegations of the petition is admittedly excessive to the amount of at least $3.28. At the same term at which the judgment was rendered, the defendants appealed, and they now challenge the judgment as unwarranted by the record. The judgment, being properly - challenged, cannot stand. There can be no recovery of a judgment by one of several obligees on a joint cause of action which he had in common with others. Clark v. Cable, 21 Mo. 223; Rainey v. Smizer, 28 Mo. 310; Ryan v. Riddle, 78 Mo. 521; Ohnsorg v. Turner, 33 Mo. App. 486. The plaintiff contends that we should presume in support of the judgment that testimony has been offered upon the inquiry of damages showing a several cause of action in the plaintiff, Annie McLaran, but such á pre [662] sumption is not legally admissible. There can be no' aider by verdict, where, a fact ■ essential to plaintiff’s-recovery is wholly omitted from the petition. Where the record shows that evidence had been offered, and is. silent on the fact what such evidence was, we must-presume that evidence was offered in support of the' petition, and not that it was offered in direct contravention thereof. The fact that the judgment is admittedly excessive furnishes an additional warrant for its reversal in a case like this, where no considerations of reaching substantial justice demand the concession of a remittitur. So far we have treated the question as determined by the record proper. It appears, however, in this, case, by affidavits filed in the trial court upon a motion to vacate the judgment, that Charles McLaran, one of' the co-obligees and original plaintiffs, had died some time prior to the entry of final judgment against the defendants. This motion was accompanied by an affidavit of merits. The plaintiff contends that this motion and affidavit are not before us, because the motion to vacate the-judgment was not filed within four days after trial and judgment, although filed within the term. This contention is untenable. The motion was presented during the term when the court had power to vacate its judgment, and its refusal to do so, in the exercise of a sound judicial discretion, is subject to review on appeal. What we said on that subject in Nelson v. Ghiselin, 17 Mo. App. 663, is still the law, subject to certain limitations introduced by the statutes since that cause was decided. What transpired upon the hearing of the motion might be preserved by bill of exceptions, and was so preserved in this case. The fact that Charles-McLaran had died prior to the rendition of the final judgment, and that the defendants had a meritorious663 defense, was shown upon the hearing of that motion, and furnished an additional reason for vacating the final judgment, and the trial court erred in refusing to do so. If Charles McLaran was, in fact, dead when the cause was dismissed as to him, that dismissal goes for naught, as it does not appear that that action was had 'at the instance of anyone representing his interest, and that entry will necessarily have to he vacated. After the plaintiff’s petition is amended, if it needs such amendment, or after the representative of Charles McLaran is brought in, if it should be deemed necessary to bring in his representative, the defendants may move to set aside the judgment of default. The vacation of the final judment does not vacate the preliminary judgment by default. Gilstrap v. Felts, 50 Mo. 428. The judgment is reversed and the cause remanded. All the judges concur.