Albert J. Hoppe, Inc. v. St. Louis Public Service Co.
| Decision Date | 13 November 1950 |
| Docket Number | No. 42031,42031 |
| Citation | 361 Mo. 402,235 S.W.2d 347,23 A.L.R.2d 846 |
| Parties | , 23 A.L.R.2d 846 ALBERT J. HOPPE, Inc. v. ST. LOUIS PUBLIC SERVICE CO. |
| Court | Missouri Supreme Court |
Mattingly, Boas & Richards, Lloyd E. Boas, St. Louis, for appellant.
Willson, Cunningham & McClellan, Richard D. Gunn, George C. Willson, Ill., St. Louis, for respondent.
Albert J. Hoppe, Inc. (hereinafter called plaintiff) sued the St. Louis Public Service Company (hereinafter called defendant) for damages to plaintiff's hearse which resulted from an intersection collision with defendant's bus at 22nd and Madison Streets in St. Louis, Missouri, on July 28, 1948. Upon the verdict of the jury judgment was entered for defendant on March 24, 1949.
Fourteen days after the judgment plaintiff filed a paper which it denominated a 'motion for new trial'. Twernty-nine days after the judgment, without notice to any of the parties and without any hearing, the trial court 'of its own motion ordered plaintiff's motion for new trial stricken from the record * * * and granted plaintiff a new trial under Section 119 of General Code for Civil Procedure for the reason that the verdict and judgment is against the evidence and against the weight of the evidence'. Defendant thereafter appealed to the St. Louis Court of Appeals. The opinion of that court, 227 S.W.2d 499, affirmed the trial court's order setting aside the verdict and judgment, and remanded the cause to the trial court. Upon defendant's motion therefor we thereafter ordered the cause transferred here.
In our view of this case, and in view of our disposition of it, we deem it unnecessary to here restate the facts as to the collision of the bus and hearse. Reference is made to the Court of Appeals opinion for such facts. We agree with that portion of the opinion of the Court of Appeals wherein that Court held that the driver of plaintiff's hearse, Mr. O'Connor, under the instant circumstances was not negligent as a matter of law, and that 'under all the testimony it (plaintiff's contributory negligence) became a jury question.'
But we are not in accord with the disposition of the other question ruled by the Court of Appeals in paragraph (12) of its opinion, 227 S.W.2d loc. cit. 503. The precise question now for our ruling, therefore, may be stated in these words: May a trial court (even though it may purpose to order a new trial upon the ground that the verdict and judgment in a case are against the weight of the evidence, and even though the trial court may make such order in less than 30 days after the rendition of the verdict and entering of the judgment in a cause) make such order without reasonable notice to the parties to the action, and without giving them an opportunity to be heard as to the propriety of such order? After consideration of the basic principles involved, and upon analysis of what the courts have written upon the subject, it is our conclusion and we rule that the trial court may not do so.
We recognize, and of course reaffirm, the inherent right of the trial court in the exercise of its judicial discretion to vacate a judgment and to order or to grant a new trial upon the ground that the verdict and judgment in a case are against the weight of the evidence. That rule is so deeply grounded in the jurisprudence of this state that no one would question it. The supporting cases are collected in West's Mo. Digest, New Trial, k72. Much has been written upon the subject. Even if the reviewing court should reach the opposite conclusion from a trial court which grants or orders a new trial for that reason, the appellate court will not interfere unless it should clearly appear that the trial court's discretion was abused and arbitrarily exercised. State ex rel. Spears v. Hughes, 346 Mo. 421, 142 S.W.2d 3; Ritzheimer v. Marshall, Mo.App., 168 S.W.2d 159.
The trial court here recognized the fact that plaintiff's purported motion for new trial (having been filed more than ten days after the verdict and judgment) was not in fact a motion for new trial but a mere nullity, which had no place in the case. The court correctly struck it from the record and files. In Mo.R.S.A. Sec. 847.119 our Code provides, that, 'Not later than 30 days after entry of judgment, the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party, and every order granting a new trial shall specify the grounds therefor.'
Under that statute the trial court has the judgment locked in its breast for those thirty statutory days, and during those thirty days, 'of its own initiative', may vacate the judgment and order a new trial upon its own motion. Berger v. Podolsky Bros., Mo.Sup., 227 S.W.2d 695; Beer v. Martel, 332 Mo. 53, 55 S.W.2d 482. Prior to our present Code, the trial court had such power during the entire term at which the judgment was entered. Beer v. Martel, supra; Savings Trust Co. of St. Louis v. Skain, 345 Mo. 46, 131 S.W.2d 566; DeMaire v. Thompson, 359 Mo. 457, 222 S.W.2d 93. And it now has such power during that 30 day period whether there is or is not a motion for new trial. DeMaire v. Thompson, supra. It is not argued that the trial court did not have the power to enter the order it made, but the question instantly here is the procedural manner in which the court must act to exercise the power which it exercised in this case.
The defendant contends that the court, in an arbitrary and unlawful manner, exercised its power to vacate the judgment, that is, that it acted without giving defendant a chance to be heard in opposition, and that the order is therefore void and deprived defendant of due process.
Upon the question now before us plaintiff cites no authority, but contends that inasmuch as Mo.R.S.A. Sec. 847.119 provides that the trial court 'of its own initiative may order a new trial' that by those quoted words a change was effected in the Missouri procedural law, and no notice to the party to be affected is necessary. Plaintiff argues that under R.S.Mo.1939, Sections 1168 and 1169 of the former Code, and under Mo.R.S.A. Sec. 847.119 of the new Code no notice to the party to be adversely affected is made mandatory by the statute. It may be conceded that no provision of that statute required a notice to be here given. But the requirement of reasonable notice goes deeper than that. The words of the new Code Section 847.119, 'of its own initiative may order a new trial', are but a statutory recognition of the power the trial court theretofore had to vacate a judgment during the term at which it was entered. Whether the trial court, of its own initiative, orders the vacation of a judgment because of a matter coming to its attention after judgment, or before judgment, is not of consequence. Upon reasonable notice it may vacate the judgment for any legal reason, if it does so 'not later than 30 days after entry of judgment'.
The question now before us concerns not the power of the court to order the vacation of a judgment, nor the time within which such vacation of judgment may be ordered. We are here concerned only with the manner of the exercise of such power. This court has written upon this question. In Dougherty v. Manhattan Rubber Co., 325 Mo. 656, 29 S.W.2d 126, 127, we said "It is a cardinal principle, that whenever a party's rights are to be affected by a summary proceeding, or motion in court, that party should be notified, in order that he may appear for his own protection.' * * * This court has heretofore refused to sanction the practice of trial courts in changing or modifying final judgment, even during the same term at which they were entered, without notice to the litigants whose interests are affected, but who are no longer in court.' In Re Zartman's Adoption, 334 Mo. 237, 65 S.W.2d 951, 956, we said: ...
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