State ex rel. Wells v. Mayfield, 44690
| Decision Date | 11 July 1955 |
| Docket Number | No. 44690,44690 |
| Citation | 365 Mo. 238,281 S.W.2d 9 |
| Parties | STATE of Missouri ex rel. Joseph N. WELLS and Ernestine Wells, his wife, Relators, v. Waldo C. MAYFIELD, Judge of the Circuit Court of the City of St. Louis, Missouri, Respondent. |
| Court | Missouri Supreme Court |
J. Raymond Dyer, St. Louis, for relators.
R. C. Brinkman, J. C. Jaeckel, Moser, Marsalek, Carpenter, Cleary & Carter, St. Louis, for respondent.
This is a proceeding in mandamus instituted in this court. The alternative writ was issued and the cause has been argued. Relators ask this court to require respondent Judge to vacate his order of October 8, 1954, in the case of Wells v. Henry W. Kuhs Realty Co., a corporation, as violative of the mandate issued by this court in that case on July 12, 1954. That mandate was issued pursuant to the opinion reported at 269 S.W.2d 761, in which this court held that the amended petition stated a cause of action and reversed a judgment of dismissal. By the present order respondent struck from that amended petition various portions, including all parts referring to an ordinance of the City of St. Louis. The contents of the parts so stricken will be referred to in more detail hereinafter.
Respondent raises at this time in his brief, but not in his answer and return to the alternative writ, the contention that this court was without jurisdiction of the appeal in the case of Wells v. Henry W. Kuhs Realty Co., supra. We have examined the briefs in that case and find that no such question was raised there. Since that is not necessarily conclusive, however, we have examined the record. However, the mere fact that respondent Judge now raises the point as respondent in this mandamus proceeding, in lieu of the defendant in the original case, should lend no aid to the contention.
The contention is based on the following facts: that the circuit court on March 3, 1952, set aside its order of January 12, 1952, overruling defendant's motion to dismiss the amended petition (and orders on the motion to strike), and then entered an order that the motion to dismiss was 'resubmitted' and was sustained; that no motion for new trial was filed within ten days thereafter, that the order became and was a final judgment, and that the motion to vacate filed on April 4, 1952, was wholly unavailing. Counsel further argue that the subsequent order of July 30, 1952, sustaining the motion to vacate and reinstating the motion to dismiss, is unavailing and void. Later the motion to dismiss was again sustained on February 17, 1953, and appeal duly taken, resulting in the opinion referred to above.
We are mindful of the case of Coyne v. Southwestern Bell Tel. Co., 360 Mo. 991, 232 S.W.2d 377, cited by respondent, and of Section 510.150 RSMo 1949, V.A.M.S. But it fairly appears from the record (and the necessary inferences from matters stated and not stated) that in and by the order of March 3, 1952, the circuit court (Judge Harry F. Russell) did, on its own motion and without notice or hearing, reverse its previous rulings, set aside those orders, 'resubmitted' the matter and sustained the motion to dismiss. Plaintiffs' counsel set up the substance of these matters in his motion to vacate the order, which motion was argued, submitted and later sustained (on July 30, 1952). Subsequently, all parties proceeded to reargue and resubmit the motion to dismiss (and motion to strike) as though the order of March 3, 1952, had been of no effect, and that motion was sustained 'with prejudice,'--resulting in the appeal referred to.
This court has held that a dismissal (even though not stated to be without prejudice as suggested in Section 510.150 RSMo 1949, V.A.M.S.) does not constitute an adjudication upon the merits or a valid, final judgment, if made without notice and an opportunity to be heard. Crispin v. St. Louis Public Service Co., 361 Mo. 866, 237 S.W.2d 153; Bindley v. Metropolitan Life Ins. Co., 358 Mo. 31, 213 S.W.2d 387. The opportunity to be heard may involve either the merits or 'whether the dismissal should be without prejudice.' And in Albert H. Hoppe, Inc., v. St. Louis Public Service Co., Banc, 361 Mo. 402, 235 S.W.2d 347, 23 A.L.R.2d 846, this court held that an order setting aside a judgment, without notice and an opportunity to be heard, although made within thirty days, was void as violative of due process. (Citing and discussing various cases.)
Under the circumstances we cannot hold that the dismissal order of March 3, 1952, constituted a valid, final judgment. The subsequent action of the court in vacating the order, and of the parties in resubmitting and re-arguing the motion, seems to concede and corroborate the lack of notice and the inherent invalidity of the order. Respondent admits in paragraph 8 of his return in the present case that at least a portion of the order of March 3, 1952, was made without notice. Surely there would not have been notice as to part but not all. While this court must always examine a question of its own jurisdiction, such a contention as this is not looked upon with any unusual favor when raised at such a late date. We note also that respondent Judge does not indicate now that his presently attacked order striking parts of the amended petition was in any way based upon any supposed lack of jurisdiction. The jurisdictional contention is overruled.
The allegations of the amended petition are rather fully set out in the opinion referred to above, 269 S.W.2d 761, 767. It would unduly prolong this opinion to repeat them here in detail. The amended petition is repetitious and exceedingly long. Some recitation is necessary here, however, in order to properly understand the present ruling. The original suit is one by the parents of an eleven year old boy for damages for his wrongful death. It is alleged: that defendant maintained a 'private-dump' on a tract of its vacant land immediately adjoining an alley (and other publicly used 'lanes') in a densely populated area in the City of St. Louis; that it did so for the convenience of its tenants in adjoining buildings; that such dump was above the grade of the alley; that tenants of defendant, and perhaps others, dumped trash, including broken and unbroken glass, on said tract immediately adjacent to the alley; that such trash was periodically hauled away by defendant; that to defendant's knowledge the neighbors used said tract for various purposes, and that the neighborhood children played thereon; that the said dump and particularly the broken glass, thus 'hard-by' the alley and lanes, was an unreasonable and highly dangerous hazard to those who might be using these public ways, and especially so to children who might inadvertently stray from the passageway; that the actual line of demarcation between the alley and the dump was obscured by dirt and weeds so that it was, for practical purposes, impossible of detection; that no warnings had ever been given, no fence or barricade erected, and no signs put up. It was further alleged that deceased, while chasing June bugs with other neighborhood children, inadvertently and lawfully strayed approximately three feet on to defendant's tract (and dump), stumbled on broken glass covered by weeds, fell, and received cuts in the abdomen from which he very shortly died. Interwoven with the above (and constituting paragraphs 8, 9, 10, 11, 12, 13 and 21 of the amended petition) appear the following allegations: that under the Constitution of Missouri, St. Louis is a charter city; that by Charter it is empowered to regulate all acts affecting the public health, morals, safety and welfare of its inhabitants; that pursuant thereto it enacted (prior to the occurrence in question and in effect at such time) an ordinance defining, regulating and requiring the licensing of 'private dumps,' which ordinance is set out in full. Briefly, the ordinance prohibits the acceptance of refuse or waste substances (which specifically included glass) for deposit on any land inside the city unless application is made to the Health Commissioner for a permit, together with a plat, a plan of operation and other data; it provides for an examination of the site by the health commissioner, a report by him, the issuance of a permit if the application be approved by the Board of Public Service, an annual fee, and that the permit shall show the established grade and elevation, 'above which dumping shall not be permitted;' there were further provisions for the display of a prominent sign, for revocation proceedings on violation, and for a revocation of the permit if the dump 'constitutes a real menace to the health, safety or welfare of the immediate residents of the neighborhood * * *,' and also a fine for violations. We find no specific requirement for covering refuse so deposited except in case of a 'sanitary land-fill,' for the deposit of combustible or 'putrescible' refuse. By fair intendment the ordinance may be said to contemplate inspections by the Health Commissioner. Plaintiffs further alleged that this ordinance was designed 'to prevent personal harm and injury * * * as well as to prevent unsightly deposits,' that defendant flagrantly violated said ordinance in procuring no permit, placing no sign, permitting dumping above grade, and in not covering the refuse deposited; also, that the death of plaintiffs' son directly resulted from such violations.
On July 31, 1954, defendant filed its motion to strike from the amended petition all of the above paragraphs concerning the ordinance and its basic authority and also the word 'unlawful' (in paragraph 24) referring to defendant's operation of the dump. The grounds of this part of the motion were that this matter did not constitute any part of the pretended cause of action and that the ordinance did not create, and could not be the basis of, a civil action. This part of the motion will be considered first. The motion was sustained in its entirety by responden...
To continue reading
Request your trial