185 Mo. App. 91 | Mo. Ct. App. | 1914
Lead Opinion
Appellant Stanton sued respondent Hanna in a justice’s court to recover eighty dollars, an alleged balance due as commission. The jury there found for the defendant. Plaintiff filed an affidavit for an appeal and the case was set on the docket of the circuit court for the August term following. When it was called, it appearing that no notice of the appeal had been given the defendant, a continuance was ordered. There is no showing that defendant appeared in person or by attorney. Within ten or twelve days of the commencement of the next succeeding term of the circuit court, plaintiff did serve notice of the appeal on an attorney who had represented defendant in the justice’s court. It appears that defendant was in another county in this State and did not know of this notice having been served, and there seems to have been some misunderstanding between him and the attorney aforesaid, because when the case was called the attorney announced that he had withdrawn from the case. In due course a default judgment was rendered for the plaintiff, of which defendant knew nothing until notified by his wife that an execution thereunder had been levied. The term of court having expired, but within a short time after the rendition of the judgment, defendant applied to the
We have lately considered the question of the right of appeal from an order vacating a final default judgment in the case of Holder v. Chidister, 177 Mo. App. 415, 162 S. W. 762, which was by us certified to the Supreme Court as we deemed our opinion in conflict with certain decisions of the Kansas City Court of Appeals. Since that time the Supreme Court has settled this question by its opinion in the case of Bussiere’s Adm’r v. Sayman, 165 S. W. 796, where the view of the St. Louis Court of Appeals in the case of Bussiere v. Sayman, 171 Mo. App. 11, 153 S. W. 507, and of this court in the case, of Holder v. Chidister, supra, that an appeal does not lie from such an order, is upheld.
Section 2101, Eevised Statutes 1909, provides how a final judgment taken by default may be set aside. Section 2104 gives a statement of what the application seeking to set aside such a judgment shall contain-. Section 2102 gives the time within which such application shall be made, and requires that it be within three years after the entry of such final judgment. In order, therefore, that a final default‘judgment be'set aside at any time after its rendition, it must be done on a-petition to review and not on such a motion as is contemplated by section 2094, Eevised Statutes 1909, which has reference only to interlocutory default judgments.
There is no doubt that the circuit' court has the inherent power, without a statute, to set aside a de7 fault judgment at any time during the term, because, for this period of time the court is said to carry its judgments in its breast; and if the court sees fit to make such an order it cannot be appealed from. Now the statute gives three years within which to present a petition for review to the circuit court and this is merely an extension of the time within whiclj the court has inherent power to act. The statute does not contemplate the beginning of a new suit or give rise to a
The appeal is dismissed.
Dissenting Opinion
DISSENTING OPINION.
This case raises a question of great importance to the bench and bar of this State. The judgment of the trial court was set aside on a petition for review under the provisions of section 2101-2104, Revised Statutes 1909, filed after the term at which the judgment was entered. My associates hold that an appeal does not lie from an order ’ vacating the judgment in this instance and decline to consider the other questions presented. This ruling is claimed to
It seems to me, however, that the Bussiere case, supra, plainly holds that an appeal will lie from an order setting aside a judgment on a petition for -review filed at a subsequent term under the provisions of sections 2101-2104, supra. That there is a radical difference between a motion to set aside a judgment filed at the same term and a petition for review filed at a subsequent term is evident and has been pointed out in the case of Billingham v. Miller & Teasdale Com. Co., 115 Mo. App. 154, 89 S. W. 356, and in Ewart v. Peniston, 233 Mo. 695, 136 S. W. 422, and cases cited, both of which are- cited in the Bussiere case, supra. The court has power to set aside a judgment on motion filed or on its own motion at the same term for entirely different reasons and under different circumstances than on a petition for review filed at a subsequent term. The latter proceeding is very much restricted as will be seen from a reading of sections 2101-2104, supra.
The Supreme Court distinctly states in the Bussiere case, supra, that the only previous ruling by that court on the question then for decision is that of Crossland v. Admire, supra, and the only decision
The Supreme Court in the Bussiere case also takes note of the case of Bank v. Kingston, 204 Mo. 687, 103 S. W. 27, where the court had held jurisdiction on appeal from an order setting aside a judgment under a petition for review under sections 2101-2104, supra. The court again distinguished the Bank-Kingston case by saying that it “was a petition in the nature of a bill in review filed by defendants, who had neither been personally served, nor appeared in the case. For such
It seems plain, therefore, that the Supreme Court in the Bussiere case has made a clear distinction between an order vacating a judgment on motion filed at the same term and an order vacating a judgment on a petition for review filed at a subsequent term, and distinguishes and approves the ruling of the Kansas City Court in the Icing Company case, supra, and of the Supreme Court in entertaining jurisdiction in Bank v. Kingston, supra; and clearly holds that while an appeal will not lie from an order vacating the judgment on motion filed at the same term, such appeal will lie from the vacation of the judgment on petition' for review filed at a subsequent term. This distinction is doubtless based on the fact that the trial court retains entire control over its proceedings until the term is ended; while after the term is ended the judgment becomes a finality and any proceeding had to impeach or set the same aside is necessarily in the.nature of a new and direct proceeding attacking the validity of the judgment.
I, therefore, dissent from the majority opinion herein, and, deeming such opinion to be in conflict with the rulings of the Supreme Court in Bussiere’s Adm’r v. Sayman, 165 S. W. 796, and Bank v. Kingston, 204 Mo. 687, 103 S. W. 27, and of the Kansas City Court of Appeals in Icing Co. v. Kemper, 166 Mo. App. 613, 149 S. W. 1163, I ask that this cause be certified to the Supreme Court for final determination.