Boeckler v. Missouri Pacific Railway Co.

10 Mo. App. 448, 1881 Mo. App. LEXIS 144

• Court: Missouri Court of Appeals
• Decided: June 14, 1881
• Status: Published

Opinions

Thompson, J.,

delivered the opinion of the court.

Our Code of Practice provides that “the plaintiff may unite in the same petition several causes of action, whether they be such as have heretofore been denominated legal or equitable, or both, where they arise out of * * * •injuries, with or without force, to person or property. * * * But the causes of action so united must all belong to one of these classes, and must affect all the parties to the action, and not require different places of trial, and must be separately stated, with the relief sought for each cause of action, in such manner that they may be intelligently distinguished.” Rev. Stats., sect. 3512. Construing this statute, the Supreme Court has several times held that where a count in equity is united in the same petition with a count at law, there must be separate trials -and separate judgments. Jones v. Moore, 42 Mo. 413, 420; Henderson v. Dickey, 50 Mo. 161, 166; Crowe v. Peters, 63 Mo. 429, 435.

The petition in the present case contained two counts: Tirst, a count for damages for trespass to real property ; and, second, a count for an injunction to restrain the continuation of the trespass. The second count did not repeat the allegations with regard to title and possession which were contained in the first count, but referred to them in the following language: “And for a further cause of action plaintiff states that while he was'the owner and lawfully possessed of said real estate as aforesaid,” etc. A jury was empanelled to try the first count, and all the evidence applicable to both counts was heard at one time and before the jury. The jury found for the plaintiff and assessed his damages at $500. Before the entry of judgment on the verdict, a motion for a new trial was filed. The judge, having taken time to advise on the matter, overruled the motion for a new trial, entered judgment on the verdict for the plaintiff under the first count, and, sitting ás a chancellor, found that the plaintiff was not entitled to the relief prayed for under the second count, and dismissed this count.

It is urged that this course of proceeding was erroneous, for two reasons : 1. That the second count is not complete in itself, so that there is really but one count in the petition, which blends together legal and equitable causes of action. This course of pleading has been frequently condemned by the Supreme Court; and the objection would be a good one if it were really applicable to the pleadings in this case. There is no doubt, especially where one count is for a legal, and the other for an equitable cause of action, that each count must be good in itself, and cannot be aided by á preceding count, unless such preceding count is expressly referred to. Clarke v. Iron Co., 9 Mo. App. 446. It seems to be the rule in Indiana, where they have a code of pleading such as ours, that one paragraph, as it is there termed, in a pleading, cannot be aided by reference to another. Mason v. Weston 29 Ind. 561; Silvers v. Railroad Co., 43 Ind. 435, 445; Potter v. Earnest, 45 Ind. 416. But we are unable to perceive any reason, cither of policy or convenience, which should carry the rule to this extent. We prefer the common-law rule, which permitted the pleader to save the repeating of matter contained in a preceding count, by making express reference to the preceding count for such matter. This, so far as we know, has been the practice of good pleaders in this State. It was done in the present case in apt words ; and we therefore hold that the petition is not bad as blending claims for legal and equitable relief in a single count.

2. The other reason urged against the regularity of the trial gives us more difficulty. It is that the court committed error in trying at one time, in a single proceeding, the issues arising under the two counts. We do not see how we can say that the Circuit Court committed no error in so doing, without disregarding the plain language of the Supreme Court in the cases already cited. Nor can we say, where the Circuit Court has adopted a course of trial, against the objection of one of the parties, which the Supreme Court has held to be fundamentally erroneous, that the error was one which did not prejudice. It would seem that, under the count for an injunction, evidence might be admitted to show the irreparable nature of the trespass, if continued, which would have no bearing on the question of the amount of damages which had been already sustained, but which might, nevertheless, have the eifect of exaggerating such damages in the minds of the jury. At all events, we feel bound to adhere closely to a rule of procedure which the Supreme Court, has laid down, leaving it to the wisdom of that tribunal to make any modification of the rule which experience shall seem to them to require.

We do not wish to be understood as questioning the propriety of the form of the judgment which was entered in this case. The rule above quoted, which requires separate trials and separate judgments, is not, as we understand it, infringed by embracing the two judgments in a single record entry, provided the proper recitals are made, which,, in the present case, appears to have been done. Aside from the bill of exceptions in this case, the record, as it reads, would imply that there were in fact separate trials, — a trial before a jury of the law count, and a hearing before the judge of the equity count; but the bill of exceptions discloses that there was but one trial, which took place against the objection of the defendant.

The judgment is reversed and the cause remanded.

All the judges concur.