Bell v. Kitt, 12915
| Decision Date | 08 August 1983 |
| Docket Number | No. 12915,12915 |
| Citation | 655 S.W.2d 881 |
| Parties | Mable BELL, Plaintiff-Respondent, v. Erma B. KITT, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
William E. Gladden, Houston, for appellant.
No appearance for respondent.
Appellant Erma B. Kitt appeals from an order of the Circuit Court of Howell County entered August 25, 1982, in Civil Action CV379-348P, finding appellant guilty of civil contempt because of her refusal to comply with an order of that court entered on January 23, 1981. "[A] party may appeal from a conviction for civil contempt." Teefey v. Teefey, 533 S.W.2d 563, 565 (Mo. banc 1976).
In Civil Action CV379-348P, Mable Bell was plaintiff and Erma Kitt, appellant here, was defendant. The action involved a dispute with respect to the title to 20 acres of land in Howell County. On November 14, 1980, the parties entered into a written stipulation for settlement. The stipulation, which was later filed in the action, recited that "in consideration of plaintiff dismissing her cause of action with prejudice" the parties agreed that the land shall be sold and the proceeds divided equally between them.
On January 23, 1981, the parties appeared in court. The court entered its "decree" finding that "the stipulation is in order." The decree recited (somewhat inaccurately) the contents of the stipulation. The decree concluded: "WHEREFORE, IT IS CONSIDERED, ORDERED AND ADJUDGED by the court that the property be sold in accordance with the stipulation for settlement and that the case be dismissed with prejudice."
On July 13, 1982, plaintiff Mable Bell filed a verified "motion for contempt" stating in part that the defendant "has failed and refused to honor said decree and to perform her stipulation and has not caused nor permitted the land to be sold." The motion sought an order citing defendant to appear and show cause why she should not be held in contempt. Also on July 13, 1982, the court issued its "order to show cause" directed to the defendant. The order was served on defendant the next day. On July 19, 1982, a hearing was held and the parties and their counsel were in attendance.
On August 25, 1982, the court entered its "judgment" reciting the entry of the decree of January 23, 1981, and further reciting that defendant "is guilty of contempt of this court" because of defendant's refusal to comply with the decree. The court ordered defendant committed to the Howell County jail "until such time as she has purged herself of this contempt." The court entered an order of commitment, directed to the sheriff, commanding him to commit defendant to jail.
Although the excellent brief of appellant challenges, on several grounds, the proceedings of 1982, and specifically the "judgment" of August 25, 1982, only one of those grounds requires discussion. For the reason that the action was dismissed on January 23, 1981, pursuant to the stipulation of the parties, it was no longer pending and the proceedings of 1982 were void.
"An order to dismiss terminates the litigation." Pender v. Pender, 634 S.W.2d 244, 246 (Mo.App.1982). "Once plaintiffs voluntarily dismissed the action there was nothing before the court upon which it could act." Emigh Engineering Co., Inc. v. Rickhoff, 605 S.W.2d 173 (Mo.App.1980).
In Bryan v. Smith, 174 F.2d 212 (7th Cir.1949), plaintiffs brought an action for the impressment of a trust upon land to which defendants held the title. While the suit was pending the court, on January 2, 1942, entered an interlocutory order requiring the defendants to convey the land to a trustee. On May 15, 1942, the court dismissed the action with prejudice pursuant to a written stipulation filed by the parties. Five years later the plaintiffs, in the dismissed action, filed a petition alleging that the defendants had not complied with the interlocutory...
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Samland v. J. White Transp. Co., Inc.
...the suit had never been brought. No steps can be taken, and any step attempted in the dismissed suit is a nullity. Bell v. Kitt, 655 S.W.2d 881, 883 (Mo.App.1983), following Emigh Engineering, supra, and Bryan v. Smith, 174 F.2d 212, (7th Cir.1949). This rule applies even where, before plai......
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State ex rel. Fisher v. McKenzie
...been brought.... No steps can be taken upon the suit after dismissal.... Any steps taken thereafter are a nullity...." Bell v. Kitt, 655 S.W.2d 881, 883 (Mo.App.1983), quoting with approval Bryan v. Smith, 174 F.2d 212 (7th Cir.1949); See also Samland v. J. White Transp. Co., Inc., 675 S.W.......
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Henry v. Piatchek
...taken thereafter are a nullity...." State ex rel. Fisher v. McKenzie, 754 S.W.2d 557, 560 (Mo. banc 1988), quoting, Bell v. Kitt, 655 S.W.2d 881, 883 (Mo. App. S.D. 1983) (alterations in original).Because the grandmother’s case was dismissed automatically when she filed her voluntary dismis......