197 Mo. App. 1 | Mo. Ct. App. | 1917
This is an original proceeding in this court by mandamus, whereby the relator seeks to compel the respondent, one of the judges of the circuit court of the city of St. Louis, to allow relator an appeal to this court from an order of respondent, as such judge, setting aside a judgment in favor of relator. To our alternative writ, wherein is incorporated relator’s petition for the writ, the respondent filed a demurrer on which he stands, and the cause has been argued and submitted for adjudication on this demurrer.
By the allegations of the alternative writ, admitted by the demurrer, it is made to appear that on August 21, 1916, an action was pending in division No. 14 of the circuit court of the city of St. Louis, presided over by respondent, brought by James B. Thomas et al. against this relator — evidently a suit upon a foreign judgment; that the cause had previously been tried before respondent, sitting as a jury, a jury having been waived, and had been taken under submission by respondent and so held until the date last mentioned (being one of the days of the June term, 1916, of said circuit court), at which time respondent, as judge of said court rendered judgment in favor of relator, the defendant therein, respondent filing a “special finding of facts” (nothing appearing as to whether this was upon request or otherwise) as follows :
“The court finds that the record of the municipal court of New York is not properly certified, in that the judge’s certificate fails to show that he was judge of part I of the municipal court of the city of New York, or that he was the chief justice of said court.
The alternative writ further alleges that on August 23, 1916, plaintiffs in said cause filed their motion for a new trial, which is fully set out; that thereafter, on Sep-* tember 30, 1916, and during the same June term, 1916, of said court, “plaintiffs, by leave of court, withdrew their motion for a new trial, and thereupon the court, on its own motion, set aside its order and judgment of August 21, 1916, and took the case under advisement, in order, as the court announced at the time, to allow plaintiffs to take a nonsuit;” that on the same day, this being the last day of the said June term, 1916, of said court, relator presented and filed his affidavit for appeal, in due form, and prayed an appeal to this court, with an allowance of ninety days in which to file a bill of exceptions and ten days after the adjournment of the term in which to file an appeal bond; but that respondent, as said judge, denied “the said prayer for an appeal and for time for filing final bill of exceptions and for giving and filing an appeal bond.”
It is further alleged that thereafter, to-wit, on October 30, 1916, on application of plaintiffs in said cause, respondent, as judge of said court, “set aside his order of September 30, 1916, taking the cause under advisement, and allowed said cause to be dismissed by plaintiffs at their costs, all in pursuance of his ahnounced intention on the 30th day of September, 1916, at which time the court set aside its judgment of August 21,1916, in favor of the defendant, in order to allow plaintiff to take a non-suit.”
The alternative writ commands the respondent to approve relator’s affidavit for appeal, to allow relator an appeal to this court and to grant him a reasonable period within which to file his bill of exceptions and appeal bond, or to show cause on a day named why he should not do so.
Respondent argues that the application for an appeal was premature; that relator should have waited and made application therefor after the nonsuit was taken on October 30, 1916. But obviously this is beside the case, for relator could not have prosecuted an appeal from the nonsuit.
On the other hand the order vacating the judgment rendered in his favor cannot be regarded as a “special order after final judgment,” within the meaning of the statute (section 2038, Revised Statutes, 1909), as relator contends. This will readily appear from an examination of the opinion of the Supreme Court in Bussiere’s Admr. v. Sayman, 257 Mo. 303, 165 S. W. 796.
The right of appeal exists, if at all, solely by virtue of the statute; for appeals are creatures of the statute. And it is apparent tó us that if relator is here entitled to prosecute an appeal from this order it is on the ground that the order, which deprived him of the benefit of a judgment rendered in his favor, is an “ order granting a new trial” within the meaning and intendment of section 2038, supra; as it now stands and has stood since the amendment of 1891. The question presented
In Bussiere’s Admr. v. Sayman, supra, following Crossland v. Admire, 118 Mo. 87, 24 S. W. 154 and Breed v. Hobart, 187 Mo. 140, 86 S. W. 108, it is held that an appeal will not lie from an order setting aside a default judgment, as being an order granting a new trial. It is said that where the judgment is one by default there has been no trial, and hence no “new trial” can be awarded, within the meaning of-the statute. And in like manner this court in Schwoerer v. Christophel, 64 Mo. App. 81, held that under the ruling in Crossland v. Admire, supra, an appeal would not lie from an order setting aside a judgment rendered in affirmance of a judgment of a justice of the peace, without a hearing. In that case this court, through Bond, J., after pointing out that the judgment had not been rendered upon a trial or examination of issues between the parties, said: “Under the ruling of the Supreme Court such a trial of the issues is indispensable to the awarding of a new trial, and the vacation of a judgment not rendered upon such a trial is not within the letter and spirit of the statute.” [See, also, Kidder v. Wright, 72 Mo. App. 378.] But we are here concerned with an order vacating a judgment which was in fact rendered upon a trial of issues joined; and it follows that Crossland v. Admire, supra, and the cases which follow it, do not determine the question before us.
It is true that the statute does not in terms allow an appeal from an order setting aside a judgment, though it be one rendered upon a trial of issues. But the effect of setting aside such a judgment, in the usual course of things, is to allow a new trial of the issues, or of some issue in the case. It is said that respondent, by his order of September 30, 1916, set aside this judgment and took the case under advisement; from which it may
In this connection it may be noted that under the rulings of the Supreme Court an appeal lies from an order setting aside an involuntary nonsuit — though section 2038, supra, does not in terms allow an appeal from such an order — as being, in effect, an order granting a new trial. This question first came before Division No. 2 of the Supreme Court in Ready v. Smith, 141 Mo. 305, 42 S. W. 727, where it was held that an appeal would not lie from such an order. However, the contrary was held by Division No. 1 of that court in State ex rel. v. Mo. Pac. Ry. Co., 149 Mo. 104, 50 S. W. 278, without referring to the prior case mentioned. And in Coatney v. Railway Company, 151 Mo. 35, 51 S. W. 1036, the Court in Banc overruled the decision in Ready v. Smith, and approved that in State ex rel. v. Mo. Pac. Ry. Co., supra.
In State ex rel. v. Mo. Pac. Ry. Co., supra, it is said by Valliant, J.:
“The right of appeal from an order sustaining a motion for a new trial was given by an act of the General Assembly, approved April 18, 1891. [Laws 1891, p. 70.] In that act no mention is made, by that name, of an
In the ease under consideration we are of the opinion that the order made, which took away relator’s judgment and left the ease open for a trial of the issues anew by the court, if it saw fit, or for the court to take such further steps as would open up the entire case, or otherwise make it necessary that the controversy between the parties be again fully fought out, was an order comprehended within the meaning and intendment of the statute allowing an appeal from an order granting a new trial.
It is true that a court of general jurisdiction has control over its judgments during the term in which they were rendered, and may, during the term, set aside any judgment entered or order made. But this does not mean that no review may be had of its action in any case whatsoever. Where a judgment has been rendered upon a trial of the issues it cannot be vacated even during the term, except upon some legal ground justifying - such course. And whether such legal ground exists is a matter for review in the appellate court. [See Morris v. Morris, 60 Mo. App. 86; Scales v. Scales, 65 Mo. App. 292.]
And the right of review is not precluded or curtailed by reason of the fact, alone, that a new trial is granted, or a judgment set aside, on the court’s own motion rather than on motion of a party litigant.
In Morris v. Morris, supra., Eombauer, J., speaking for this court, said:
We are of the opinion that relator has a clear legal right to prosecute an appeal from the ruling which he seeks to have us review Our alternative writ will accordingly be made peremptory. It is so ordered.