Casey v. St. Louis & San Francisco Railroad

Missouri Court of Appeals

Casey v. St. Louis & San Francisco Railroad

124 S.W. 562, 146 Mo. App. 614, 1910 Mo. App. LEXIS 502

DecidedJanuary 18, 1910

StatusPublished

This text of 124 S.W. 562 (Casey v. St. Louis & San Francisco Railroad) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Casey v. St. Louis & San Francisco Railroad, 124 S.W. 562, 146 Mo. App. 614, 1910 Mo. App. LEXIS 502 (Mo. Ct. App. 1910).

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Opinion

GOODE, J.

Tbe opinion given on tbe former appeal of this case will show its merits. [Casey v. Railroad, 116 Mo. App. 235, 91 S. W. 419.] Tbe evidence is not contained in tbe present record, it being irrelevant to tbe points made on tbe appeal, which are technical. Tbe action as originally instituted was for double damages for tbe destruction of plaintiff’s meadow and cornstalk pasturage by cattle which bad strayed into bis fields in consequence of defendant’s omission to fence its right of way. In tbe original statement plaintiff laid bis damages at $50 and asked judgment for twice that amount. After tbe remand of tbe case by this court to tbe circuit court, plaintiff was permitted to amend his statement by laying bis damages at one hundred dollars instead of fifty dollars, and praying for twice tbe former amount. He obtained a verdict for $65, August 6, 1908, and on said verdict, on tbe same day, judgment was entered for $65; [617]*617that is, the sum found by the jury, instead of twice said sum. Timely motions for new trial and in arrest were filed by defendant and overruled, and then on August 21, 1908, during the same term of court, an affidavit for appeal was filed and the appeal allowed and granted to this court. Afterwards, during some day in August not stated, the court adjourned until December 7, 1908, which would be an adjourned term of the August term, and continued over all undisposed of motions and proceedings. On December 8, 1908, that being the second day of the adjourned August term, the court set aside its orders overruling defendant’s motions for new trial and in arrest; also set aside the judgment previously entered in the cause and the order allowing an appeal. Thereupon the court, on plaintiff’s motion, entered judgment on the verdict for twice the amount of damages returned by the jury, or $130. An exception was saved by defendant to this ruling on the ground the court had lost jurisdiction of the cause by the appeal previously allowed on August 21, 1908. Afterwards the court again overruled defendant’s motions for new trial and in arrest and on said December 8th, allowed an appeal in the cause to this court.

Errors are assigned for permitting plaintiff to amend his statement by increasing the damages demanded, and for the setting aside the judgment first entered on the verdict for sixty-five dollars and entering judgment for twice the amount after the appeal had been allowed. The action as originally filed was one for double damages for failure to comply with the statutes and the amendment swelling the amount of damages claimed, did not change the cause of action and was properly allowed. [Elliott v. Abell, 39 Mo. App. 346.]

It has been said in many cases that, when an appeal is allowed from the circuit court to an upper tribunal, the former court loses jurisdiction over the casue; but the extent of this rule was expounded by the Supreme Court in Crawford v. Railroad, 171 Mo. 68, 66 S. W. [618]*618350, and shown not to prevent the trial court from setting aside its judgment and entering a proper judgment after granting an appeal, provided the orders are made during the term the first judgment was rendered. This is what the court did in the present case and was within its power.

The judgment is affirmed.

All concur.

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GOODE, J.

Tbe opinion given on tbe former appeal of this case will show its merits. [Casey v. Railroad, 116 Mo. App. 235, 91 S. W. 419.] Tbe evidence is not contained in tbe present record, it being irrelevant to tbe points made on tbe appeal, which are technical. Tbe action as originally instituted was for double damages for tbe destruction of plaintiff’s meadow and cornstalk pasturage by cattle which bad strayed into bis fields in consequence of defendant’s omission to fence its right of way. In tbe original statement plaintiff laid bis damages at $50 and asked judgment for twice that amount. After tbe remand of tbe case by this court to tbe circuit court, plaintiff was permitted to amend his statement by laying bis damages at one hundred dollars instead of fifty dollars, and praying for twice tbe former amount. He obtained a verdict for $65, August 6, 1908, and on said verdict, on tbe same day, judgment was entered for $65; [617]*617that is, the sum found by the jury, instead of twice said sum. Timely motions for new trial and in arrest were filed by defendant and overruled, and then on August 21, 1908, during the same term of court, an affidavit for appeal was filed and the appeal allowed and granted to this court. Afterwards, during some day in August not stated, the court adjourned until December 7, 1908, which would be an adjourned term of the August term, and continued over all undisposed of motions and proceedings. On December 8, 1908, that being the second day of the adjourned August term, the court set aside its orders overruling defendant’s motions for new trial and in arrest; also set aside the judgment previously entered in the cause and the order allowing an appeal. Thereupon the court, on plaintiff’s motion, entered judgment on the verdict for twice the amount of damages returned by the jury, or $130. An exception was saved by defendant to this ruling on the ground the court had lost jurisdiction of the cause by the appeal previously allowed on August 21, 1908. Afterwards the court again overruled defendant’s motions for new trial and in arrest and on said December 8th, allowed an appeal in the cause to this court.

Errors are assigned for permitting plaintiff to amend his statement by increasing the damages demanded, and for the setting aside the judgment first entered on the verdict for sixty-five dollars and entering judgment for twice the amount after the appeal had been allowed. The action as originally filed was one for double damages for failure to comply with the statutes and the amendment swelling the amount of damages claimed, did not change the cause of action and was properly allowed. [Elliott v. Abell, 39 Mo. App. 346.]

It has been said in many cases that, when an appeal is allowed from the circuit court to an upper tribunal, the former court loses jurisdiction over the casue; but the extent of this rule was expounded by the Supreme Court in Crawford v. Railroad, 171 Mo. 68, 66 S. W. [618]*618350, and shown not to prevent the trial court from setting aside its judgment and entering a proper judgment after granting an appeal, provided the orders are made during the term the first judgment was rendered. This is what the court did in the present case and was within its power.

The judgment is affirmed.

All concur.

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124 S.W. 562, 146 Mo. App. 614, 1910 Mo. App. LEXIS 502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/casey-v-st-louis-san-francisco-railroad-moctapp-1910.

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