Aubuchon v. Ayers

• Decision Date: 15 February 1966
• Docket Number: No. 32207,32207
• Citation: 400 S.W.2d 472
• Parties: William AUBUCHON, Plaintiff-Respondent, v. Don AYERS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 472

400 S.W.2d 472

William AUBUCHON, Plaintiff-Respondent, v. Don AYERS, Defendant-Appellant.

No. 32207.

St. Louis Court of Appeals, Missouri.

Feb. 15, 1966.

Wilburn A. Duncan, Robert R. Young, St. Louis, for defendant-appellant.

Gerald K. Rabushka, Clayton, for plaintiff-respondent.

BRADY, Commissioner.

The plaintiff brought an action in the magistrate court of the City of St. Louis for personal injuries and property damage arising out of an automobile collision. The prayer of the petition was for $750.00 and costs. Trial resulted in a judgment in favor of plaintiff for the amount prayed. The defendant posted bond and filed his timely notice of appeal. The appeal rested in the circuit court for slightly over two months and then plaintiff, by leave of court, dismissed his 'cause of action' without prejudice and at his costs. The defendant's motion to set aside that dismissal was overruled by the trial court. Two days later the defendant filed a motion stating that he took the appeal pursuant to Civil Rule 82.05, (a), V.A.M.R. The trial court sustained this motion stating 'leave granted.' The plaintiff then filed a motion to set aside this order granting defendant leave to appeal. The trial court also overruled this motion. The plaintiff later filed a new action in the circuit court wherein he prayed for $15,000.00 for damages arising from the same accident.

Recognizing that it has long been the rule in this state that an appeal will not lie from an order granting a voluntary nonsuit (§ 512.020, RSMo 1959, V.A.M.S., and cases collected at note 83), the plaintiff has filed a motion to dismiss this appeal on the grounds the trial court's ruling on defendant's motion was not an appealable judgment. We took that motion with the case and it is now for our ruling. It should be pointed out what little difference exists as to whether the decision in the instant appeal be ruled upon the motion to dismiss or upon the merits of the appeal is one of form and not of substance. This for the reason that a party cannot appeal unless he is 'aggrieved' by the final judgment of the trial court. That is merely another way of saying that the party 'aggrieved' has shown he will lose some right of defense or the other party will gain some undue advantage if allowed to dismiss without prejudice, and this has been held to be the proper scope of inquiry in determining whether a party should be allowed to dismiss without prejudice. McClellan v. Sam Schwartz Pontiac, Inc., Mo., 338 S.W.2d 49, l.c. 53, quoting from Smith v. Taylor, Mo.App., 289 S.W.2d 134, l.c. 140. For that reason we will rule this appeal upon the motion to dismiss the appeal on the ground the defendant was not aggrieved by the trial court's ruling. It should be noted that a ruling upon the motion constitutes, in effect at least, a ruling upon the merits and in this respect the instant case is somewhat unusual.

In McClellan v. Sam Schwartz Pontiac, Inc., supra, the availability of a voluntary dismissal without prejudice and by leave of court, following an appeal from a judgment of the magistrate court was squarely ruled. In that case plaintiff, an automobile dealer, brought suit in the magistrate court to recover the balance due on a promissory note signed by the defendant. The defendant denied the plaintiff's petition alleging failure of consideration in that he never received title to the automobile and filed a counterclaim alleging the payment of $1,242.33 upon the note and praying for a judgment of $1,000.00, the monetary jurisdictional limit of the magistrate court at that time. Trial resulted in judgment for defendant upon plaintiff's petition and for plaintiff upon defendant's counterclaim. The plaintiff appealed to the circuit court. After the case was properly lodged in the circuit court the defendant, by leave of court, dismissed his counterclaim without prejudice and three days later filed a new action in the circuit court for $1,242.33, and for punitive damages in the amount of $25,000.00. The plaintiff filed a motion to dismiss the later action originating in the circuit court, and as grounds therefor recited the events stated above and incorporated the appeal from the magistrate court in its motion. The trial court sustained plaintiff's motion and dismissed the second action. The court reviewed the case law and the pertinent statutes, in particular § 512.250 (unless otherwise noted, all statutory references in this opinion are to RSMo 1959, V.A.M.S.), § 512.270, § 512.280, § 512.290, § 512.310, all of which, except § 512.290, are pertinent to the instant case. It then made five conclusions of law of which four directly rule the instant case. (The other dealt with whether a counterclaim could be amended in the circuit court to state a higher prayer.) It was first held the appeal transferred the whole case including the counterclaim to the circuit court; the court then held (McClellan v. Sam Schwartz Pontiac, Inc., 338 S.W.2d 49, l.c. 52, (2), (2), (4), and (5)): '(2) When the appeal was taken 'The cause is considered as still pending, no regard is had to the judgment of the justice, and the rights of the parties are the same as they would be in any other suit pending in the courts of record.' Turner v. Northcut, 9 Mo. 251, 256. * * * (4) After the appeal was lodged in the circuit court appellant 'shall be allowed' to dismiss his counterclaim without prejudice, at any time before the same is finally submitted. Sections 510.130 and 510.160. (5) After dismissal of the counterclaim without prejudice appellant could 'bring another action for the same cause.' Section 510.150.' The Supreme Court held the defendant (338 S.W.2d 49, l.c. 52) '* * * had the right to follow that procedure and hence the court erred in entering the judgment of dismissal' in the second action.

It is obvious that the decision in McClellan is bottomed upon the second conclusion containing the citation from Turner v. Northcut, 9 Mo. 251. In turn this depends upon whether the judgment of the justice (magistrate) court is considered to have been vacated or suspended by the appeal to the circuit court. The decision in Turner v. Northcut, supra, and a long line of decisions since that time is to the effect that the judgment of the justice or magistrate court is vacated by an appeal to the circuit court. The court in Turner v. Northcut, supra, reached its decision by an interpretation of Sec. 8, Art. 8 of the act relating to justice courts as found in RSMo 1835. That section would seem to be procedural in scope, and is the same, practically speaking, as § 512.270 of our present statutes. The pertinent language found in both the 1835 act and in the present statute is to the effect that upon the circuit court being possessed of the cause on appeal it '* * * shall proceed to hear, try and determine the same anew, without regarding any error, defect or other imperfection on the trial, judgment or other proceedings of the magistrate or sheriff in relation to the cause.' The court in Turner v. Northcut, supra, made no reference to Sec. 3, paragraph 2, of Art. 8 of the act relating to justice courts RSMo 1835. Again the language of that section has been carried forward and is found almost identically stated in § 512.190 of our present statutes. Both of these sections, the 1835 act and the present law, provide that the recognizance is to be conditioned upon the prosecution of the appeal with due diligence and each provides (§ 512.190): '* * * and that if on such appeal the judgment of the magistrate (justice) be affirmed, or upon a trial anew in the appellate court judgment be given against him, he will pay such judgment, and that, if his appeal be dismissed, he will pay the judgment of the magistrate, together with the costs.' (Emphasis supplied.) The italicized portions of this language would indicate that the legislature never intended, in 1835 or in 1945 upon the passage of the magistrate court act of this state, to allow magistrate judgments to be 'vacated' by an appeal to the circuit court. A judgment which has been vacated could not be 'affirmed' and neither could it be paid. Yet the court in Turner v. Northcut, supra, paid no attention to the second paragraph of Sec. 3 of Art. 8 of the 1835 statutes when it held that (9 Mo. 251, l.c. 256) '* * * When an appeal is taken by either party, its effect is not only to suspend, but to destroy the effect of a judgment of a justice; it makes it as though no judgment had been rendered. * * *' Further explanation, if not criticism, of Turner is to be found in Pullis v. Pullis Bros. Iron Co.,...