Breeding v. Nelson
142 Mo. App. 685
Mo. Ct. App.
1909
Check Treatment
GOODE, J.

(after stating the facts). — As defendant, who appealed from the justice of the peace, was in possession of the property, he had no absolute right to dismiss his appeal and thereby escape an order for a return of the property or judgment against him and his sureties on the appeal bond. [Munley v. King, 40 Mo. App. 531.] It is a sound proposition of law, as contended by defendant’s counsel, that when final judgment is entered in a cause: at one term, it cannot be altered or modified at the succeeding term. But this rule is subject to the qualification that if a motion to modify is filed at the term when the judgment was en*692tered, and is carried over to the next term without a ruling, it may be disposed of at the subsequent term. [Harkness v. Jarvis, 182 Mo. 231.] If the court at the June term had expressly ordered the judgment of dismissal entered at the April term set aside in accordance with plaintiff’s motion, there could be no question that the whole case would have been reopened for further proceedings. By inadvertence the court affirmed the judgment of the justice without expressly setting aside the dismissal, instead of setting it aside and then entering the affirmance. But the entire tenor of the order made at the June term, shows the intention was to sustain the motion to set aside the dismissal and then enter judgment of affirmance; and considered, according to its substance this was the effect of the order. [Lane v. Dowd, 172 Mo. 167.] Therefore the appeal should be treated as though the cause stood at the June term and thereafter for action relieved from the obstacle of a judgment rendered at a previous term. Hence the court had jurisdiction of the cause at the June term, could enter judgment of affirmance and afterward, and during said term, might modify this judgment if it saw proper. Plaintiff filed a motion to have it modified, which motion went over to the October term; and under the authority of Harkness v. Jarvis, and the settled rule, might be acted on at that term. And so the proceeding continued until it was finally heard on the evidence adduced by the respective parties.

The question of jurisdiction now raised may be considered from another point of view. Instead of standing on the position he took that the judgment of dismissal at the April term precluded any further action after the motion to set aside said judgment had been withdrawn, defendant submitted evidence and took part in the trial on the merits. The fifth clause of the Statute of Jeofails says the judgment in a cause shall not be stayed, reversed or impaired “for any mis*693pleading, miscontinuance or discontinuance, insufficient pleading, jeofail or misjoining issue.” [R. S. 1899, sec. 672.] In Thurman v. James, 48 Mo. 235, that clause of the statute was construed when the point in dispute was precisely the one here. The cause had been dismissed and the record failed to show, except inferentially, that the judgment of dismissal had been set aside. The court held a dismissal amounted to a discontinuance within the meaning of the statute, and as the parties had afterwards submitted themselves to the jurisdiction, this prior discontinuance did not affect the subsequent proceedings. It was also said the order of dismissal ought to be considered as having been set aside, inasmuch as the parties appeared and went to trial and the court toot jurisdiction of the case and rendered judgment in it.

The judgment is affirmed.

All concur.