233 Mo. 695 | Mo. | 1911
Action in the circuit court of the city of St. Louis to establish the alleged will of Solomon P. Sublette. Plaintiffs and defendants are alleged to be the only 'heirs at law of the said Solomon P. Sublette, as well as the only beneficiaries -under the said will. It appears that there was an attempt to probate the will in the probate court of the city of St. Louis in 1896, but the same was rejected. The petition avers that the plaintiffs a,re and for years had been married women, and thus they sought to obviate the bar of the Statute of Limitations. Upon a
On January 3, 1908, one Albert T. Terry, a stranger to the record, filed a motion in which it is suggested that there are a great number of persons interested in the probate of this said will: “-who claim to own and hold the title to, as heirs and purchasers under said Solomon P. Sublette, large and valuable tracts of land located in the city of St. Louis, Missouri, and elsewhere, which titles are based upon the death of said Solomon P. Sublette without a will and the descent of his property.to his heirs at law.” It is averred that the petitioner is one of such persons and the land he so claims is described. The pleading filed by Terry thus concludes:
“Wherefore your petitioner shows the court that he is in danger, unless the court is willing to exercise its discretion by setting aside said decree, of losing title to the valuable property which he and those under whom he claims have held for over half a century and without having an opportunity to defend his title before this court.
“Wherefore your petitioner respectfully prays that the court set aside the judgment and verdict in this case and order a new trial of the issues herein at which time there may be present and participating such other and further parties as will represent the heirs at law at this time and those who would take by descent and distribution the estate of Solomon P. Sublette and such other and further parties may be heard as claim title to the various parcels of the property embraced in the estate of Solomon P. Sublette, deceased, and that this petitioner and such others of the claimants of title in said property, or persons who are liable undér warranty deeds covering said property,
Such motion was verified, but no answer to the plaintiffs’ petition was tendered therewith. As against this motion the plaintiffs filed the affidavit of James T., Roberts, in which it is said:
“Affiant further states that he has been connected with this litigation for two years and in connection with said litigation he has familiarized himself with the genealogy of the Sublette family and particularly the genealogy of the testator, Solomon P‘. Sublette, and affiant verily believes that Thena Ewart and Martha Brass, the plaintiffs in this canse, and Robert S. Peniston, John N. Dalby, Nannie ■ B. Wilburn and Lucy Harris are all of. the béneficiáries under the will of the testator propounded in this cause, either' taking directly under the will or as purchasers from other devisees.
“Affiant further states that the petitioner,, Albert T. Terry, is not one of the heirs at law of Solomon P. Sublette, the testator, nor is his grantor, nor is anyone under whom Terry or his grantor claim one of the heirs at law of the said Solomon P. Sublette, but in truth and fact Albert T. Terry, and those under whom he claims, are strangers to the blood of Solomon T. Sublette and have no rights to be made plaintiffs or defendants in this cause.
“Affiant further states that the plaintiffs and defendants in this cause are not only the only beneficiaries and devisees under said will, but they are also all of the heirs at law of Solomon P. Sublette now interested in said estate. Further affiant saith not.”
Plaintiffs also filed a motion to strike out the said motion of Albert T. Terry, which was overruled by the trial court and the judgment establishing the will was set aside, by the following judgment of the said court:
From such order and judgment the plaintiffs have appealed. Points made will be noted in the course of the opinion.
This action of the court must be viewed in this opinion from two standpoints, (1) whether or not the court could act upon the motion of Terry, a stranger to the. record, and (2) whether the court could act of its own motion. Of these in order.
II. The application of Terry cannot be sustained on the theory of being a motion for new trial for two reasons, (1) because not filed in time, and (2) because filed by a stranger to the record.
This document was filed more than four days after the verdict and judgment, and as a motion for new trial was out of time. As a motion for new trial it should not have been considered. [R. S. 1909, sec. 2025; St. Joseph v. Robison, 125 Mo. 1; Scullin v. Railroad, 192 Mo. 1.] The four days mentioned in the statute, supra, are calendar days, not court days. [Long v. Hawkins, 178 Mo. 103.]
It is true that calendar days have been defined to be and are “working” days, as distinguished from Sunday. [Cattell v. Publishing Co., 88 Mo. 356; National Bank v. Williams, 46 Mo. 17; State v. Harris, 121 Mo. 445.]
As a motion for new trial it cannot be sustained
What we here say applies to this instrument filed ' by Terry purely as a motion for new trial. What has thus far been said does not apply to it as a pleading in any other sense than a motion for new trial. Other phases of the question we take later.
Neither is it good under our statute as a petition for review. Such petitions must be filed by a defendant in the cause, and Terry was not a defendant in this cause. [R. S. 1909, sec. 2101, et seq.]
Counsel for Terry who have filed briefs in the cause do not seriously contend that this instrument filed by Terry could be sustained upon the ground of its being either a proper motion for a new trial or a petition for review.
Their contention we take next.
III. It is urged that the court was fully authorized to set aside the verdict and judgment of its own motion. The plaintiffs say, however, that the court is only authorized to set aside a verdict upon its own motion for one or both of the two grounds mentioned in section 2023, Revised Statutes 1909, which reads: “Only one new trial shall be allowed to either,party, except:' First, where the triers of the fact shall have erred in a matter of law; second, when the jury shall
This section in our judgment does not apply to this case. Upon its face it is shown to apply only to cases involving the granting of a second motion for new trial to the same party. In support of their contention counsel for plaintiffs cite us to the case of State ex rel. Brainerd v. Adams, 84 Mo. 310. There is language in that case which lends color to the ’Contention made that the court of its own motion can only set aside a verdict for the reasons specified in’ the statute, but when the whole opinion is considered we hardly think it susceptible to the construction urged. Especially, in a case where no previous motion for new trial had been granted. In that case, Judge Adams of the circuit court had set aside a verdict of his own motion. By mandamus in the St. Louis Court of Appeals the relator sought to compel him to enter judgment upon the verdict. The St. Louis Court of Appeals directed the judgment to be entered, and further directed that after such entry of judgment the trial court permit the filing of a motion for a new trial within four days. There were cross .appeals from this judgment of the Court of Appeals. [State ex rel. v. Adams, 84 Mo. l. c. 314.] The case was finally disposed of here by this langmage in the concluding portion of the opinion: ‘ ‘ The judgment of the Court of Appeals is reversed and the cause remanded to that court, with directions to enter a judgment refusing the peremptory writ.” It therefore appears that this court refused to let the writ go directing a judgment to be entered upon the verdict, although the court had set aside such verdict of its own motion.
The statute invoked has from an early day been construed in this State. It has always been construed as applying to a second motion for new trial urged by the same party. [Boyce’s Admr. v. Smith’s Admr.,
Again in Kreis v. Railroad, 131 Mo. l. c. 544, we said: “Our conclusion is that a proper construction of the statute gives the trial court the right to grant to either party one new trial on the ground of the insufficiency of the evidence to support the verdict of the jury, regardless of the number of new trials that may have been granted to such party upon other grounds.”
Those cases outline the conception of this court as to the statute relied upon by the plaintiffs, and urged by them in this case. We are not impressed with its application to the case at bar. We are of opinion that courts, upon their own motion, may, in the interest of justice, and during the same term of the court,' set aside their judgment and the verdict upon which it was entered, notwithstanding this statute. The statute does not preclude the court in the exercise of its common law powers to protect the sanctity and justice of its own judgments, if such power is exercised at the term, and before the court has lost control of such judgment by the lapse of the term.
It has been well said by Bland, P. J., in Head v. Randolph, 83 Mo. App. l. c. 287: “A trial court has ‘the undoubted authority at any time during the term at which a judgment was rendered, if the trial judge believes a fair trial has not been had, or for any cause there has been a failure of justice, to set aside the judgment and grant a new trial, of its own motion, or on a motion for new trial. [Scott v. Smith, 133 Mo. 618; Ensor v. Smith, 57 Mo. App. 585; Wight v. Railroad, 20 Mo. App. 481.] And it may set aside a judgment for cause and grant a new trial, even though the motion was filed out of time, if done before the adjournment of the term at which the judgment was rendered. [Nelson v. Ghiselin, 17 Mo. App. 663; McLaran v. Wilhelm, 50 Mo. App. 658; Anderson v. Per
In Scott v. Smith, 133 Mo. l. c. 622, this court said: “ín the absence of a statutory limitation, a trial court possessing general jurisdiction and proceeding according to the course of the common law. has control of its judgments of the character of this one during the term at which they are rendered, and power to vacate them in its discretion. [Williams v. Circuit Court, 5 Mo. 249; Rottman v. Schmucker, 94 Mo. 143; Nelson v. Ghiselin, 17 Mo. App. 665.] While the discretion is judicial, yet it should not he interfered with by appellate courts unless arbitrarily and oppressively exercised. ’ ’
In Rottman v. Schmucker, 94 Mo. l. c. 144, we further said: “That a court of general jurisdiction, proceeding according to the course of the common law, has unlimited power during the whole of the term over its judgments rendered at such term is a rule of universal application. [Freeman on Judgments, sec. 90.] Until the end of the term its judgments are in the breast of the court, and may be modified, vacated, or set aside, as justice demands, becoming absolute only upon the adjournment of the court for that term, and no good reason is perceived why the same rule should not apply to those judgments of the probate court, whose verity is as unquestionable after they become absolute as those of the circuit court.”
Again in Aull v. St. Louis Trust Co., 149 Mo. 13, we said: “The power of a court over its judgments ' during the entire term at which they are rendered, is one of its .common law powers, of which it can only be deprived by statutory enactment. [1 Freeman on Judgments (1 Ed.), sec. 90.]” On the next page we quote with approval what was said in the Rottman case, supra.
Reverting, therefore, to the judgment of the court in the case at bar, we are of opinion that the trial court in the exercise of its discretion had the right to set aside its judgment, as well as the verdict of the jury upon which it was based. Nor. would we say the paper filed by Terry was improperly permitted to stand of record. ■ As a motion for new trial it could not be considered, and in so far as the trial court considered it in that light there was error. But trial courts have permitted motions for new trial filed out of time to remain on file, and the court of its own motion granted a new trial. If trial courts are to ex- - ercise their common law rights in protecting the sanctity and justice of their judgments, such courts must acquire knowledge in some manner as to wherein injustice has been done.
We cannot say in this light that the instrument filed by Terry was improper. It no doubt occasioned the investigation by the court upon its own motion. When this whole record is considered we cannot say that the court did violence to its discretionary powers in setting aside the judgment in this case. Unless we can so say we should not interfere. If plaintiffs have a meritorious cause, it can he fully shown upon a re