72 Mo. App. 217 | Mo. Ct. App. | 1897
This was an action of ejectment in which defendant had judgment.
Extrinsic parol evidence was heard by the court in support of the motion to set aside which strongly tended to support the ground thereof. It showed that neither the plaintiff nor his attorneys were present when the motion to retax was called and by the court
The statute provides that the judgment of any court of record shall not be set aside for irregularity on motion unless such motion be made within three years after the term at which such judgment was rendered. R. S., sec. 2235.
The plaintiff’s motion was to set aside the judgment not on account of an irregularity not appearing upon the face of the record. It is grounded on latent errors of fact which did not appear on the face of the record and which could only be brought to the attention of the court by evidence aliunde. A motion to set aside a judgment for irregularity or error in fact in its
The irregularity in making the order, which was in effect a final judgment, it is insisted, is to be found in the action of the court in rendering it in the absence of the plaintiff and his attorneys. In Thompson on Trials, sec. 2229, it is stated that the failure of the plaintiff to appear when his case is called for trial is equivalent to the expression of an election on his part .'to take a nonsuit. In such case no judgment can be taken against him,but his action should be dismissed, or judgment of nonsuit entered. In Nordmanser v. Hitchcock, 40 Mo. 179, was where the plaintiff did not appear when the cause was called for trial and the court proceeded to hear evidence at the instance of the defendant and gave judgment for him. It was declared by the court in the course of its opinion in the case that' “If the plaintiff does not come into court to prosecute his suit no judgment can be taken against him and his action should be dismissed.” Wright v. Salisbury, 46 Mo. 26, was where the defendant had pleaded an equitable set-off and at the trial made no appearance and his set-off was not considered. Later on he brought a separate suit for the set-off. The defense was res adjudicata. Touching the question whether the set-off was res adjudicata the court in substance said the set-off was an independent claim brought into court by the defendant and could not be investigated on the merits unless prosecuted by him. ■ The court does not sit to repre
These and other authorities that might be cited declare in effect that the nonappearance of a plaintiff when his case is called for trial deprives the court of jurisdiction to render judgment against him on the merits. It was only jurisdiction in such case to dismiss the cause. Phillips v. Cassidy, 36 La. 288. The legislature has, however, changed this common law rule when there is a counterclaim pleaded by the defendant. The dismissal of the plaintiff’s suit does not carry with it the counterclaim. The defendant may still try the cause of action alleged in his counterclaim. R. S., sec. 8172.. Beyond this the rule remains intact.
In passing along it may be remarked that it is made sufficiently plain from what has already been said that the defense of res adgudicata does not arise in the case, for the reason that the matters set forth in the motion were not adjudicated in fact. The court was without the requisite jurisdiction to do so. Wright v. Salisbury, supra.
We think the authorities to which we have adverted indubitably show that the action of the trial court in overruling the motion to retas costs, or which is the same thing in effect giving judgment on the merits for defendant, in the absence of the plaintiff, was an “irregularity’ ’ which was fatal. There was a departure from the mode of proceeding'that was necessary for the due and orderly conducting of the suit. The court in ren
The judgment appealed from is reversed and cause remanded.