160 Mo. App. 381 | Mo. Ct. App. | 1911
(after stating the facts). — As already suggested, the only question ■ before us is, whether the trial court had the power, on motion, to set aside its final judgment rendered herein at its April term, 1909, after the lapse of such term. Defendant Hannah Miller contends that the judgment was properly thus set aside for “irregularity” under section 2121 of the Revised Statutes 1909. In an attempt to sustain this position, she assumes, both in her motion and in the brief of her counsel, that when the trial court at the February term found that she was not entitled to the relief prayed for in her cross-bill in the nature of an interplea and dismissed such cross-bill, she was thereby put out of the cause and the court lost jurisdiction over her at the close of the February term. So assuming, she concludes that it was irregular, to include her within the scope of the judgment which was entered at the subsequent April term as to plaintiff’s cause of action. Such conclusion is unsound because the premise is incorrect. This defendant was not put out of the cause by the dismissal of her cross-bill. Such dismissal was not of her,- but of her cross-bill. She was a defendant in the suit duly summoned, and, in addition to her cross-bill, had filed an answer putting in issue the allegations of plaintiff’s petition and she still remained a defendant with her general denial before the court. The dismissal simply eliminated her cross-bill from the case, leaving plaintiff’s cause of action, as set forth in her petition and denied by this defendant, unadjudicated. As to it, the cause was still before the court, just as it would have been if this defendant had not filed her cross-bill. So far as plaintiff’s suit was concerned there was no final judgment at the February term. The record discloses that at the February term, the entire cause came on for
II. The' other ground, of the motion is, in effect, that, under the facts averred in plaintiff’s petition, the defendant Hannah Miller was not chargeable with the interest for which the final judgment against her was rendered. It is sufficient to say of this that the judgment for interest was specifically prayed for in plaintiff’s petition, and if the point now made is well taken, it would indicate judicial error in the judgment, but it would not justify setting it aside as irregular upon such a motion as the trial court acted upon here. “An erroneous judgment, regularly reached in accordance with established rules of procedure cannot be reversed by such a motion interposed after the lapse of the term at which it was pronounced.” [State ex rel. Ozark Co. v. Tate, 109 Mo. 265, 271, 18 S. W. 1088; Hall v. Lane, 123 Mo. 633, 636, 27 S. W. 546.]
We are convinced that the order of the circuit court made during its December term, 1909, setting-aside or expunging part of the decree entered at the April term, 1909, is erroneous. Therefore, the said order is reversed and the cause remanded.
