I dissent from the statement of law announced by HIGBEE, C., and think the case should be differently disposed of.
Here we have no final judgment from which an appeal would lie. The appeal was, therefore, premature. The cases which Judge HIGBEE distinguishes, State v. Hewitt, 256 S.W. 546; State v. Holland, 160 Mo. l.c. 667, and others, were criminal cases. Since no final judgment had been rendered, this court in each case set aside *Page 678 the submission and remanded the case, directing the trial court to enter judgment in accordance with the verdict. The State being a party to a criminal case, and this court having a superintending control over circuit courts, assumed jurisdiction to order the trial court to perform its duty and sentence the convicted defendant. It was assumed that the premature appeal in such case was sufficient to bring to this court notice of the failure of that duty by the trial court without any direct application to this court for that purpose.
Judge HIGBEE, in his opinion dismissing the appeal, asserts there is no appeal here and the case is still pending in the trial court. If that doctrine is carried to its logical conclusion there is nothing to dismiss. We cannot dismiss an appeal unless there is an appeal. We could only strike from the docket the alleged appeal. The case is not still pending in the trial court, after the verdict, except for the purpose of rendering a judgment on the verdict.
The opinion distinguishes this case from the criminal cases cited only on the ground that the verdict here is not responsive to the pleadings. Since there is no proper appeal here, and the case is not here for review, we cannot examine the record to discover errors committed at the trial. We could only ascertain whether a final judgment was rendered from which the appeal could be taken. Besides, it is the duty of the trial court to enter judgment in accordance with the verdict, although the verdict be erroneous. The plaintiff against whom the verdict is rendered has a right to have the judgment entered in accordance with the verdict so that he may appeal from it. Otherwise he is left remediless. There is no judgment from which he can appeal, and he has failed to recover the land for which he sues. The trial judge can enter no other judgment than one that agrees with the verdict, unless he grants a new trial, which he had failed to do by overruling the motion for new trial. The appellant could bring a mandamus proceeding in *Page 679 this court asking this court to order the trial court to enter judgment according to the verdict, and we would be obliged to make the order. We could not stop to inquire whether there was error committed in the trial of the case, or whether the verdict was supported by the evidence, or the pleading, or the instruction. Plaintiff has the right to have the judgment entered because he has the right to appeal.
The only distinction between this case and the other cases mentioned is that those are criminal cases, with the State a party. Since this court had no proceeding in those cases other than the information brought to it by the premature appeal, upon which it could order the trial court to enter judgment according to the verdict, it has jurisdiction to perform that function in this case. I am unable to see a distinction on any ground suggested. I therefore dissent.