Dixon ex rel. Boyer v. St. Louis Transit Co.

BECKEE, J. Plaintiffs below, respondents here, filed their petition in two counts in the circuit court of St. Louis against the St. Louis Transit Company, the first count being of $5000 damages for the death of their father resulting from injuries alleged to have been sustained through the negligence and carelessness of the defendant, and the second count in equity seeking to set aside two judgments obtained before a justice of the peace in the name of the respondents for $100, each of which judgments are alleged to have been obtained by fraud and for the sole purpose of obtaining a release of all claims against the defendant for • damages by reason of the death of the father of the respondents [648] caused by the alleged negligence and carelessness of the defendant. The court below proceeded with the trial of the count in equity first and after hearing the testimony set the judgments of the justice of' the Peace aside. Thereupon the defendant, in due course, appealed to this court. The record of the case before us shows that the count at law for $5000 has not been tried. Under section 1795, Revised Statutes of Missouri, 1909, “plaintiff may unite in the same petition several causes of action whether they be such as have been heretofore denominated, legal or equitable or both.” . . . And section 1971, Revised Statutes of Missouri, 1909, among other things provides: “The judgment upon each separate finding shall await the trial of all the issues.” . . . And as it is provided by section 2097. Revised Statutes of Missouri, 1909, that, “only one final judgment shall be given in the action,” it follows that one single final judgment must dispose of all the issues and all the parties in the case. [McQuitty v. Steckdaub (Mo.), 190 S. W. 590; Cramer v. Barron, 193 Mo. l. c. 329, 91 S. W. 1038; Baker v. St. Louis, 189 Mo. l. c. 378, 88 S. W. 74; Rock Island Imp. Co. v. Marr, 168 Mo. l. c. 257, 67 S. W. 586; Warren v. Manwarring, 173 Mo. l. c. 37, 73 S. W. 447; Mann v. Doerr, 222 Mo. l. c. 10, 121 S. W. 86; Stone v. Perkins, 217 Mo. 586, 117 S. W. 717; Smith v. Kiene, 231 Mo. 215, 132 S. W. 1052; Clark v. Sub. Ry. Co., 234 Mo. l. c. 435, 137 S. W. 583; State ex rel. v. Fraser, 165 Mo. l. c. 256, 65 S. W. 569; Russell v. Ry. Co., 154 Mo. l. c. 431, 432, 55 S. W. 454; Estes v. Fry. 166 Mo. l. c. 70, 65 S. W. 741; Holborn v. Naughton, 60 Mo. App. 103; Beshears v. Vandalia Bank Ass’n., 73 Mo. App. l. c. 299; Seay v. Sanders, 88 Mo. App. 484; Pipe Co. v. Railroad, 137 Mo. App. l. c. 512, 119 S. W. 1; Wollman v. Loewen, 108 Mo. App. l. c. 587, 84 S. W. 166.] So where one count of a petition containing ■ two or more counts, is adjudged insufficient, there can be no appeal from the order so adjudging it until after the several counts have been tried and determined, and that for the [649] reason that there can he no final judgment until the whole ease is determined. In the case at bar the petition contains one count at law and one in equity, and the count in equity having been heard and disposed of, the circuit court must proceed with the trial of the count at law, and upon the determination thereof the whole judgment in the case should he set out in the final judgment on both counts. [Russell v. St. Louis & Sub. Ry. Co., 154 Mo. 428, 55 S. W. 454; Courtney v. Blackwell, 150 Mo. 245, 51 S. W. 668.] It follows from what we have stated above that this appeal was prematurely taken. The appeal is accordingly dismissed. Reynolds, P. J., and Allen, J., concur.