Cairo Brewing Co. v. Hogg

141 Mo. App. 391 | Mo. Ct. App. | 1910

COX, J.

The question to he determined here is the validity of the judgment entered at the January term, 1909. We first observe that this case was dismissed by plaintiff at the April term, 1907, and no further entry made at that term. It follows then that after the adjournment of that term, the case was out of court and the court lost all jurisdiction thereof and was powerless to reinstate it, or make any orders in that case at a subsequent term without the voluntary appearance and consent of all the parties. [Danforth v. Lowe, 53 Mo. 217; Warren v. Manwarring, 173 Mo. l. c. 38, 73 S. W. 447.]

After this dismissal and the adjournment of the term this case was out of court as completely as if it had been tried on its merits, and a final judgment rendered. If it ever got back into court, how did it get back, and for what purpose? It could only be reinstated for trial upon its merits by consent of both parties, and this consent must be shown to be for the purpose of a trial on the merits, and after a reinstatement in this way, the case would, in legal contemplation, be a new suit instituted at the time of the entry of appearance of the parties and not a continuation of the original case.

In this case we find a stranger to this action, Paul Jones & Company, who, though they may have been interested in some way, yet are not parties to the record, coming into court, and in another case, to-wit: that of Paul Jones & Company v. G-ray & Company, filing a motion in that case to reinstate the case of the Cairo Brewing Company v. James B. Hogg. The court 'sustained that motion in that case and made the order as requested, reinstating the case of Cairo Brewing Company v. Hogg. It is clear that this order was a nullity and did not have the effect to reinstate the brewing company case, nor did it invest the court with jurisdiction to take any steps therein. At the October term, 1907, appears the first order of court made in this case after its dismissal in April, 1907, which is as follows:

“Cairo Brewing Company v. James R. Hogg.

“Now at this time, a motion, heretofore filed to have cause redocketed, is, by the court, sustained, the cause is ordered docketed and continued until the next regular term of this court.”

The motion referred to in this order is evidently the motion filed by Paul Jones & Company in the other case, and upon which the order made therein reinstating this case was made in July, 1907. There was no appearance of any hind by plaintiff at this term, and it is clear that up to this time the court had acquired no jurisdiction oyer plaintiff and could not have made any order at that time that would bind it. At the next term, January, 1908, there was no appearance by plaintiff and the cause was ordered continued to the next term. At the April term, 1908, plaintiff appeared and filed a motion to strike the case from the docket. At that time the only parties in court were Paul Jones & Company and plaintiff. Paul Jones & Company had filed the o'riginal motion to reinstate, and this for the purpose of having taxed against plaintiff, Brewing Company, the accrued costs in the case of Paul Jones & Company v.Gray &. Company. Plaintiff was in court to resist that motion, and at this time, the only matter before the court was this motion which was, in effect, a motion to tax costs, and in which no one was interested except the brewing company and Paul Jones & Company. The motion to reinstate shows that the reinstatement of the case was not asked for the purpose of having the case disposed of upon its merits, but was for a special purpose only, namely: that of taxing certain costs against plaintiff. The defendant in the case, Hogg, had not appeared and was not a necessary party to a hearing on the question between Paul Jones & Company and the brewing company as to the taxing of costs.

It is contended by defendant in error that the record made at the October term, 1908, which recites that the case was continued “by agreement of the parties hereto,” means that all parties consented to the continuance, and that that gave the court jurisdiction in the entire case. With this we do not agree. At the time this order was made, the only parties in court were Paul Jones & Company and the brewing company, and the recital in the order “by agreement of parties hereto” must, therefore, be held to refer only to the parties then in court and cannot be held to include Hogg, the defendant. This being true, there- is nothing in this record to show that defendant, Hogg, made any appearance until the day the judgment was rendered in his favor at the January term, 1909, and we do not think that his appearance at that time gave the court jurisdiction to enter judgment in his favor and against plaintiff on the merits of the replevin suit. The re-plevin suit had been dismissed, and that order of dismissal had not been set aside, and while the record recites that the replevin suit of the Cairo Brewing Company v. James R. Hogg was reinstated as a matter of fact, such was not the case. The only matter before the court at any time, after the dismissal, was the question of taxing costs, and while it was proper for the purpose of the motion to tax costs to carry the case on the docket in the name of the original parties, yet doing so did not reinstate the case for any purpose other than that contained in the motion. The appearance of plaintiff by filing a motion to strike from the docket because the costs had been paid, and its subsequent agreement to continue could only apply to the motion to tax costs, filed by Jones & Company, and by no rule of pleading can this conduct upon its part be construed to mean an appearance for the purpose of relitigating the merits of the action with the defendant, Hogg.

A motion to tax costs may be filed in a case after the term at which the case is disposed of, but it cannot be said that the filing of such a motion, and an appearance thereto by the other party reinstates the case for trial on the merits, much less would this be true where the motion to tax costs is filed by one not a party to the record in the original suit. It follows that this judgment was rendered without authority, and should be reversed. It is so ordered.

All concur.