22 Mo. App. 516 | Mo. Ct. App. | 1886
This was an ordinary action on an account ; service was had on defendant, and, on trial, judgment was rendered in plaintiff ’ s favor. Defendant, in due time, filed his motion for new trial, which was granted, whereupon plaintiff voluntarily dismissed the case, and final judgment was regularly entered for defendant “that he go thereof without day, and have and recover his costs,” etc. Afterwards, but during the same term, without notice to defendant, plaintiff filed a motion to reinstate the cause. Afterwards, defendant not appearing, the motion was sustained and the cause reinstated.
Afterwards, defendant not appearing, judgment was-rendered for plaintiff for $1,113.45. During the same term defendant appeared, for the purpose of his motion, only, and moved to set aside the last judgment, which was sustained. Afterwards, defendant still not appearing, judgment was again rendered for plaintiffs. The next day, defendant, appearing specially, filed his notion to set aside and arrest the judgment, and strike the cause from the docket. This motion was overruled, and. defendant brings the case to this court.
The question presented is, could plaintiff yoluntarily dismiss his case, and, after final judgment for defendant, have the cause reinstated at same term, without notice to-defendant of his motion to that effect ? I think he could not. It is true that all proceedings are in the breast of
But, because the power exists in the court is no reason why the parties to be affected shall not have notice of the proceedings. If notified and given an opportunity to be heard, they may be successful in convincing the court that its power or authority should not be exercised in the given case.
When once summoned, a party to a cause is in court, and he must take notice of what is done therein up to final judgment, and by such proceedings he is bound. But “ after judgment, the case and the necessity for his presence is presumed to be at an end, and if the opposite party would take any further step, he must give his adversary an opportuniiy to be present and be heard.” Wright v. Laclaire, 3 Clark (Iowa) 221; Delaplaine v. Hitchcock, 6 Hill 14; Caldwell v. Lockridge, 9 Mo. 362 ; Freeman on Judgments, sect. 142.
The case of Caldwell v. Lockridge, supra, was where-an administrator, at the November term, 1838, made final settlement of the estate, had an allowance in his favor and resigned. At the same term, but without notice to the administrator, the court set aside the allowance, and found a balance against the administrator. It was held that the court had the power to vacate the order, or judgment, given during the term, but could only do this after notice to the administrator. That case is cited with approval in State ex rel. Thomas v. The Treasurer of Callaway County, 43 Mo. 228.
I think this case should stand on its dismissal by plaintiff. The judgment is, therefore, reversed.
