53 Mo. App. 655 | Mo. Ct. App. | 1893
— The defendant is a manufacturer, and the plaintiff was at the dates hereinafter stated its traveling salesman. The plaintiff brought suit to the March term, 1891, of the St. Charles circuit court to recover from the defendant a balance alleged to be due to him for commissions. The defendant answered at the same term generally, denying the plaintiff’s petition and setting up a counter-claim. At the September term of the court the case was called for trial, and, the plaintiff not appearing, the defendant submitted evidence on its counter-claim. The court thereupon
The common-law power of courts to set aside their own judgments during the term when rendered has always been recognized in this state. Judge Scott in Ashly v. Glasgow, 7 Mo. 320, thus states the rule: “When a final judgment is rendered in a cause, and that judgment is erroneous, it may, during the term at which it was rendered, be set aside, for during the term all the proceedings are in the breast of the court, and
We have thoroughly examined this question and stated the rule, as well as the limitation on the power of the courts, in Nelson v. Ghiselin, 17 Mo. App. 663. The rule thus stated has been re-affirmed repeatedly by ourselves and the Kansas City Court of Appeals. Fannon v. Plummer, 30 Mo. App. 25; Carr v. Dawes, 46 Mo. App. 598, 600. We see no reason to depart from it.
In the case at bar the first judgment rendered was erroneous. A judgment must dispose of all the issues, and that judgment failed to dispose of the plaintiff’s cause of action. We would not have been warranted in saying that the court had acted oppressively if it had vacated the judgment for that cause alone. The affidavits filed with the motion, while failing to show due diligence, show an excuse for its want, which as men we are bound to recognize. In Judah v. Hogan, 67 Mo. 252, a relief refused by the circuit court was granted by the supreme court under somewhat similar circumstances. The affidavits, therefore, furnished additional ground for setting aside the judgment. Nor do we see any abuse of judicial discretion in the court’s failure to impose all the costs in the case on the plaintiff. It was only the costs of the September
The judgment is affirmed.