Mooney v. Kennett

Scott, Judge,

delivered the opinion of the court.

1. It would seem from the petition, that this is a suit for a wrongful arrest' and prosecution and an assault and battery. There are two causes of action joined, or rather mingled together, in violation of the rules of pleading, as determined by this court, in the case of Childs v. The Bank of Mo., 17 Mo. Rep. 213, and of the forms of pleading, as prescribed in the precedents appended to the present practice act. Those precedents show that, while many causes of action may be joined in one petition, yet each is to be set out separately and apart from the others, with its appropriate prayer for relief — a course indispensably necessary, it would seem, to avoid inextricable confusion. No effort was made by the defendant to relieve the pleadings of this embarrassment, but the parties went to trial, trying both causes of action at one and the same time, as appears by the record, and taking but a single assessment of damages. If the parties will not properly prepare their pleadings in the courts in which their causes are first tried, they cannot expect a reformation of them in this court.

Its powers are not competent to such an undertaking. No such authority is entrusted to it. It must take the record as it is, and affirm or reverse the judgment, as is warranted by the principles of law. The presumption is in favor of the correctness' of the judgment of the inferior court, and if there is enough in the record to sustain it, it must be affirmed.

2. It was a provision of the late code of procedure, that where there are several counts in a declaration, and entire dam *554 .ages were given., the verdict should be good, notwithstanding one or more of the counts should be defective. If the present practice act is properly administered, such a state of things cannot arise under it. If, however, under the present act, two distinct causes of action are blended and tried together, and a single assessment of damages is made, and one'of the causes of action is insufficient to sustain a judgment, or there has been error in the trial of it, and the other is sufficient and the trial of it has been, regular, what is to be done ? Will the legal cause of action, with its regular trial, support the verdict, without regard to the defective cause of action or the error in the trial, notwithstanding it is obvious that the defective cause of action, or that in the trial of which there may be error, was considered by the jury in assessing the damages^ Where several causes of action are joined in one petition, there should be a separate assessment of damages or verdict in each cause; otherwise, when a new trial is had in one cause of action, there must necessarily be a new trial as to all, where it is apparent that the verdict, as to some of them, is correct. This course, too, will enable the plaintiff to enter a nolle prosequi as to one cause of action, and take a judgment for the rest. A general finding for the ' defendant, on a petition containing several causes of action, maybe sustained; but where the finding is for the plaintiff, every consideration of propriety requires that there should be a verdict in each cause of action, and these will all be blended in one judgment. This course of pleading and practice is also recommended by the considerations that a motion in arrest of judgment will thereby be confined in its effect to the cause of action defectively stated, and plaintiffs will be enabled to see the glaring impropriety of misjoining different parties, between whom there is no privity in the same action. It is now' become a common practice to unite an action of ejectment with a petition for partition, thus making the tenant in possession wait the event of a litigation in which he has no interest, before his part of the suit can be tried.

3. As the present practice act does not prescribe a mode by *555 which this irregularity in pleading can be corrected, and as this is not one of the enumerated causes of a demurrer, the most suitable mode of redress, in such cases, would seem to be a motion to the court to compel the plaintiff to elect for which cause of action he will proceed. An election of one of the causes will not have the effect to prevent a future action for the other causes. In all cases of election, the costs would be at the discretion of the court, to be governed by the circumstances, so that justice may be done.

4. In the case under consideration, there was an instruction given in relation to the assault and battery, which cannot be sustained. The jury was told that, although they may believe from the evidence, that the defendant had probable cause for giving information of the violation of the law by the plaintiff, still this does not authorize or justify the defendant in committing an assault and battery upon the person of the plaintiff, and if the jury also believe he did so commit an assault and battery, the law presumes it to have been done maliciously, and the jury are at liberty, in such case, to render a larger amount than the amount actually paid by the plaintiff, by way of smart money. We know of no principle which justifies such an instruction in a trial for an assault and battery.

5. The cause of action, as to the wrongful prosecution, as stated, does not aver that the injury was done maliciously, whereas, malice is of the essence of the action; but even if this was not fatal, surely the omission to show that the plaintiff was acquitted of the prosecution, is a fatal objection to this portion of the petition.

6. The court did not err in refusing, as evidence, the ordinances of the city. The courts of the state do not take judicial notice of the ordinances of any town or city. The defendant must set forth his justification in his answer. If he relies on the ordinances of the city, he should set out so much of them as may be necessary for his defence, that the plaintiff' may know on what ho relies. It is obvious that the 8th section of the 7th article of the practice act does not affect this matter, *556 as it relates only to tbe private acts of tbe general assembly. It is only necessary to read the defence set up by the defendant, in his answer, as to the wrongful prosecution, to be satisfied of its insufficiency. The facts are pleaded in such a way as not to constitute any justification for the act complained of.

The other judges concurring,

the judgment will be reversed, and the cause remanded.