125 Mo. App. 573 | Mo. Ct. App. | 1907
The appeal in' this case is prosecuted. by plaintiffs from the following order: “It is hereby ordered by the court on the court’s own motion that the order heretofore made in this cause overruling defendant’s motion for a new trial be set aside and for naught held, and it -is hereby ordered that the defendant’s motion for a new trial be sustained; and it is further hereby ordered that the defendant’s motion to set aside the judgment rendered herein against the 'defendant be and the same is hereby sustained and new trial granted upon the payment by defendant of all costs accrued to this date.”
Judge Teasdale, at the time was afflicted with the malady which subsequently caused his death. He became incapacitated for attending to the duties of his office and on June 27,1906, the Honorable Thomas J. See-horn was elected and qualified special judge by the members of the bar under the provisions of section 1679, Revised Statutes 1899, to discharge the duties of the office during the period covered by the disqualification of the regular judge. On the next day, defendant renewed his effort to obtain a new trial of the cause by filing a motion to set aside the judgment on the ground stated in the motion for new trial to which we have referred. The new motion was filed at the term during which the judgment was entered, was supported by the affidavit of the attorney for defendant and was opposed by affidavits filed by plaintiffs. It appears that Judge Seehorn consulted Judge Teasdale about this motion, at the latter’s home, and Judge Teasdale wrote the following 'memorandum on the papers: “I have concluded the motion to set aside default should be sustained if defendants pay all costs in case to date, and I want you to set aside my order overruling the motion and then set aside default if costs are paid.” Thereupon, Judge Seehorn, in open court, and during the term in which judgment had been given, made the order which is the subject of present complaint. The affidavits filed by defendant tend to show the existence of a
First, we will determine whether.the trial court was invested with power to make the order in question, had the regular judge who tried the case continued to preside. Section 802, Revised Statutes 1899, provides that “all motions for new trial and in arrest of judgment shall be made within four days after the trial if the term shall so long continue, and if not, then before the end of the term.” It is too well settled in this State to require the citation of authorities that the statutory provisions quoted must he construed to mean that all motions for a. new trial .and amendments thereto must be filed within the time specified in order to give to the moving party the right to have them considered. The first motion was filed by defendant in proper time and when it was overruled, his right to file either an amendment or a new motion had expired. Therefore, the second motion filed by him could not be considered by the court as a motion for a new trial, and it remains to be seen whether it could be treated as a suggestion to the court that afi injustice had been committed against defendant in a matter of law which the court, in the exercise of a sound discretion, had the power to remedy. Except where restricted by statute, a trial court, possessing general jurisdiction and proceeding according to the course of the common law, has control of its judgments during the term at which they are rendered, and power to vacate them in its discretion. When convinced that an injustice has been committed against the losing party in a matter of law, the trial court vacates the judgment, its action is judicial and should not be disturbed by the appellate tribunal, unless it clearly appears that the court has acted arbitrarily and oppressively and not within the confines of proper dis
To say that the trial court is without power to vacate a judgment during the term at which it was rendered, because the motion for new trial has been overruled, and the losing party, on account of the lapse of the statutory period of four days, is devoid of the right to move again for a new trial, would be to say that, the court has no jurisdiction over the judgment and is utterly powerless to remedy an injustice, of the existence of which he has become satisfied. It is enough to say that the jurisdiction which the court retains over a cause during the term at which judgment has been entered is complete except in so far as it has been curtailed by statute. And the court may, of its.own motion, vacate the judgment either with or without the suggestion of the defeated party, and may treat a motion for a new trial filed out of time as a suggestion invoking the exercise of judicial discretion. [Williams v. Circuit Court, supra.]
There is no statute in this State abridging the power of the court thus to set aside a judgment on account of error committed by the judge in a matter of law or in one of practice. The construction placed by the Supreme Court in State ex rel. Brainerd v. Adams, 84 Mo. 310, on the statute now appearing as section 801, does not apply to a case such as that before us, where the court acts on its own motion, but at the request of the injured party. On this branch of the case, we conclude that the regular judge, had he been holding court, possessed the power which, in his discretion, he could exert to prevent the accomplishment of a judicial wrong.
The specal judge who, it is conceded, was elected in compliance with the terms of the statute, became endowed with all the powers, responsibilities and du