| Mo. Ct. App. | Apr 30, 1900
The plaintiff brought his suit for divorce in the circuit court of Harrison county against the defendant, who was a resident of the state of Virginia, where a substitute service of the process of summons was had on her. The defendant appeared to the suit and by demurrer, which was sustained, questioned the jurisdiction of the court. The plaintiff took leave of the court to amend his petition but instead of doing so he voluntarily dismissed his suit. After-wards, during the same term, the court, on the motion of the defendant, set aside the order of dismissal and made an order allowing the defendant the sum of one hundred and fifty dollars for alimony. Later on, during the term, the cause was again called by the court for further disposition and the
The question raised by the appeal is, whether after the plaintiff bad dismissed bis suit tbe court had, during the same term, jurisdiction to set aside the order of dismissal and to reinstate the suit ? An irregularity for which a judgment may be set aside has been defined to be the want of adherence to some prescribed rule or mode of procedure, either in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unseasonable time, or improper manner, Clowser v. Noland, 72 Mo. App. 219, and cases there cited. And it is the well-recognized general rule of law in this and other jurisdictions that all judgments, decrees and other orders, however conclusive, are under the control of the court which pronounces them during the term at which they are rendered or entered of record, and they may be set aside, vacated or annulled by that court. Clowser v. Noland, ante; Harbor v. Railway, 32 Mo. 423" court="Mo." date_filed="1862-07-15" href="https://app.midpage.ai/document/harbor-v-pacific-railroad-8001168?utm_source=webapp" opinion_id="8001168">32 Mo. 423; Ashby v. Glascow, 7 Mo. 320" court="Mo." date_filed="1842-04-15" href="https://app.midpage.ai/document/ashby-v-glasgow-6610577?utm_source=webapp" opinion_id="6610577">7 Mo. 320; Bronson v. Schulten, 104 U.S. 410" court="SCOTUS" date_filed="1882-01-18" href="https://app.midpage.ai/document/bronson-v-schulten-90470?utm_source=webapp" opinion_id="90470">104 U. S. 410. During the term which, in legal Contemplation, is but a single day, everything is in fieri. State v. Jeffors, 64 Mo. 376" court="Mo." date_filed="1877-04-15" href="https://app.midpage.ai/document/state-v-jeffors-8005554?utm_source=webapp" opinion_id="8005554">64 Mo. 376.
There can be no question that a plaintiff, under our statute, has the right to dismiss his suit or take a honsuit at any time before the same is finally submitted to the jury or to the court Sitting as a jury or to the court. Wilson v. Stark, 42 Mo. App. 379; Fink v. Bruihl, 47 Mo. 175; Anderson’s Law Dictionary, 1023; R. S. 1889, sec. 2080. It thus appears that neither the right of the plaintiff to dismiss his suit under the conditions already indicated, nor the jurisdiction of the court, during the term at which the order of dismissal was
The record does not disclose the nature of the alimony which was allowed by the court, whether for sustenance or suit money, or for both. Erom the facts and circumstances disclosed by the record, we may, we think, fairly infer that the alimony so allowed was for the latter kind. When the case was reinstated it was competent for the court to determine the amount of suit money to which the defendant was entitled. The plaintiff ought not to have been permitted to escape the payment of alimony of this kind by dismissing his suit. She was entitled to counsel and to have a reasonable allowance out of which to pay them for their services. If sufficiently appearing to the court that the dismissal of the suit by the plaintiff would result in leaving her without means to pay her counsel for their services in making her defense, and, perhaps, to reimburse friends, too, who had supplied her with needed funds to aid her in making her defense, it was its duty to protect her against such unjust consequences; and to that end, it was proper to set aside the order of dismissal and reinstate the suit so that it would have jurisdiction to make her a reasonable allowance of such alimony. The allowance was made before the final dismissal of the suit—while it was still pending—and therefore we think the same was within the jurisdiction of the court. Waters v. Waters, 49 Mo. 385" court="Mo." date_filed="1872-02-15" href="https://app.midpage.ai/document/waters-v-waters-8003470?utm_source=webapp" opinion_id="8003470">49 Mo. 385; Adams v. Adams, 49 Mo. App. 592" court="Mo. Ct. App." date_filed="1892-05-03" href="https://app.midpage.ai/document/adams-v-adams-8260387?utm_source=webapp" opinion_id="8260387">49 Mo. App. 592. No such irregularity is perceived on the face of the record as precluded the jurisdiction of the court either to set aside the order of dismissal
It results that the judgment must be affirmed.