Sater v. Hunt

75 Mo. App. 468, 1898 Mo. App. LEXIS 455

• Court: Missouri Court of Appeals
• Decided: May 10, 1898
• Status: Published

Opinion

Bond, J. —

This is a suit by the indorsee of a promissory note which was reissued by the makers, who were husband and wife, for the amount thereof and for the foreclosure of a mortgage given upon the property of the wife to secure its payment. It was begun March 11, 1892, in the circuit court of Dade county and was taken by change of venue to Lawrence county. The wife interposed a general demurrer, which was sustained on the twenty-third of August, 1893, whereupon the court entered judgment in her favor.

On the same day plaintiff filed a motion for new trial, which was overruled, as was also his motion in arrest, whereupon he filed his bill of exceptions, which was made a part of the record on the twenty-sixth of August, 1893. At the same term plaintiff perfected his appeal from said judgment to the supreme court, which tribunal transferred the case to the St. Louis court of appeals, whose decision therein is'reported in 61 Mo. App. 228, after which the cause was again tried in the circuit court in August, 1895, and a judgment was rendered in favor of plaintiff and against defendant Samuel Hunt for the amount of the debt and also adjudging a foreclosure of his interest in the mortgage premises.

Erom this judgment an appeal was again prosecuted to this court, the disposition of which is shown in 66 Mo. App. 527. After the remand of the cause under that opinion to the circuit court for retrial, the defendant Minnie Hunt filed her answer, setting up as a bar to any proceeding against her, the final judgment on her demurrer in 1893, and alleging that it was unappealed from and unreversed and in full force and effect, and answering further, that the note in suit had been fully paid and discharged by her; and answering further, that she never indorsed the same on its reissue nor authorized any person to do so in her behalf. This answer was sworn to. Thereupon the cause proceeded to trial and the court upon the objection of Minnie Hunt excluded all evidence proffered by plaintiff against her, and at the conclusion of the trial rendered judgment in plaintiff's favor against her husband, S. L. Hunt, for the amount of the note sued on and for a foreclosure of the interest of the husband in the mortgaged property, from which judgment the present appeal is prosecuted by plaintiff.

judgment in a There can be but one final judgment in any civil action, and this judgment must dispose of all the parties to the record, in order to entitle the aggrieved party to take an appeal. R. S. 1889, sec. 2213; Beshears, Ex’r, v. Banking Ass’n, No. 6914, present term, unreported; Helborn v. Naughton, 60 Mo. App. loc. cit. 103, and cases cited; Carthage Marble and White Lime Co. v. Bauman, 55 Mo. App. loc. cit. 211. Nor can any appeal from a final judgment be taken after the term at which it was rendered. R. S. 1889, sec. 2246. In accordance with these principles when this case was first brought to this court the appeal then taken was adjudged premature. When the case was brought here on the second appeal a judgment disposing of it, as to the remaining parties, had been entered. The decision then rendered, remanded the cause for error in the ruling of the trial court in sustaining the demurrer of defendant Minnie Hunt. Notwithstanding this decision, the trial court on the retrial excluded all evidence proffered against Minnie Hunt. This ruling was not in accordance with the last decision of this court, and therefore erroneous. For this reason, the judgment herein is reversed and the cause remanded.

All concur.