Marshall v. Armstrong

79 S.W. 1161, 105 Mo. App. 234, 1904 Mo. App. LEXIS 575

• Court: Missouri Court of Appeals
• Decided: February 2, 1904
• Status: Published

Opinion

REYBURN, J.,

(after stating the facts as above).

1. The plaintiff was entitled to a verdict, under the amendment to the constitution, concurred in by at least three-fourths of the members of the jury, and the' verdict as rendered by seven jurors, was fatally defective and in legal effect no verdict at all. Girdner v. Bryan, 94 Mo. App. 27.

2. The form of the verdict was incomplete in containing no finding upon all the issues submitted to the jury; there should have been separate findings upon plaintiff’s cause of action and defendant’s counterclaim respectively. Henderson v. Davis, 74 Mo. App. 1; Hitchcock v. Baughan, 44 Mo. App. 42.

3. As the case must be remanded to the lower court for retrial, it may be proper to suggest that if the counterclaim sought to be interposed by defendant, if it be proper matter of counterclaim or offset to plaintiff’s demand, which we do not deem necessary to decide in the condition in which the case is before this court, be still relied on, the answer setting it up should be amended in conformity to the facts out of which it is alleged to have arisen.

Judgment reversed and cause remanded.

Bland, P. J., and Goode, J., concur.