Blackwell-Wielandy B. & S. Co. v. John L. Boland B. & S. Co.

• Decision Date: 03 November 1920
• Docket Number: No. 15914.,15914.
• Citation: 226 S.W. 274
• Court: Missouri Court of Appeals
• Parties: BLACKWELL-WIELANDY BOOK & STATIONERY CO. v. JOHN L. BOLAND BOOK & STATIONERY CO.

226 S.W. 274

BLACKWELL-WIELANDY BOOK & STATIONERY CO. v. JOHN L. BOLAND BOOK & STATIONERY CO.

No. 15914.

St. Louis Court of Appeals. Missouri.

Submitted October 5, 1920.

Opinion Filed November 3, 1920.

Rehearing Denied December 7, 1920.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

"Not to be officially published."

Action by the Blackwell-Wielandy Book & Stationery Company against the John L. Boland Book & Stationery Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Charles S. Reber, of St. Louis, and E. W. Mills, of Clayton, for appellant.

Bryan, Williams & Cave, of St. Louis, for respondent.,

REYNOLDS, P. J.

This is an action to recover taxes paid by plaintiff on certain property leased to plaintiff, the defendant then acquiring it and on which it was conducting its business. Conveying its stock and good will of the business to plaintiff, the latter agreed to assume and fulfill the terms of the lease, although it was not formally assigned to it. Alleging that defendant was liable for certain taxes which the plaintiff paid under the lease, and that defendant had failed and refused to pay them, plaintiff seeks to recover the amount and interest. From a judgment for defendant on a trial before the court, a jury having been waived, plaintiff has duly appealed.

It appears that when the action was instituted the sheriff made return that he had served the summons on "Catherine M. Boland, president of the John L. Boland Book and Stationery Company, a corporation; defendant herein," on August 31, 1912. It was returnable to the September term, 1912, of the circuit court. That term began on September 10, 1912. On November 29, 1912, during this September term, Mrs. Boland, "as trustee in dissolution of defendant, John L. Boland Book and Stationery Company," filed an application to be made a party defendant therein. The defendant company not pleading, on December 3, 1912, and during the September term, on motion of plaintiff, a default was granted by the court against defendant. Calling the attention of the court to Mrs. Boland's application, plaintiff's counsel moved to strike it from the files. No action appears to have been taken on either the application or motion. The court announced that the entry of a formal order to that effect was unnecessary and that the application would be ignored. Thereupon an inquiry into damages was had by the court and, hearing evidence offered by plaintiff, on said December 3, 1912, the court rendered judgment in favor of plaintiff and against defendant in the sum of $2,047.00 and costs. On December 4, 1912, and still during the September term, a motion was filed to set aside the default and judgment by Catherine M. Boland, as trustee, etc., and on that day and term — but as it is said — without notice to plaintiff or its attorneys, and in their absence and without their knowledge, the court set aside the default judgment and directed that Catherine M. Boland be made party defendant and allowed three days in which to file an answer. The answer was duly filed and denied any obligation of the defendant company to pay the taxes demanded. Thereafter, on January 2, 1913, but still at the September, 1912, term, plaintiff filed a motion to set aside the order of December third, vacating and setting aside the judgment of December third, and to reinstate that judgment. Thereafter the cause was continued to the next term of the court, to-wit, the January, 1913, term, and at that term the above motion was overruled. Afterwards and during the same term plaintiff filed its affidavit for appeal from the refusal of the court to set aside its order vacating and setting aside the judgment and in refusing to reinstate the judgment. The appeal was perfected to our court and there dismissed "without prejudice," on the ground that the appeal had been taken prematurely, that is, before any final judgment had been rendered. The cause going back to the circuit court, the plaintiff filed an amended petition, and the defendant company filed an answer denying each and all the allegations of that petition. The cause thereupon came on for hearing before the court, a jury being waived, and after hearing the evidence, the court, in a written memorandum filed, brought up by appellant, found for defendant and rendered judgment accordingly, from which plaintiff has duly appealed. It may be noted that the proceedings at the September term were duly saved by term bill of exceptions and at the end of the trial that fact is duly noted in the motion, for a new trial, and that action is now assigned as error.

Disposing of that contention first, we see no error in it. Many decisions recognize die power of the court, of its own motion, and at the term at which the order or judgment is rendered, to change and set aside its action thereon. To be sure this power is not to be exercised arbitrarily and unjustly. But we see no such action here. The defendant was entitled to be heard. Here Catherine M. Boland, as its trustee in dissolution, attempted that. For some reason the court denied her. If there was any arbitrary action it was here; but on having its attention called to it, the court reconsidered its action and set aside the default. That was right action in the interest of justice. That was the only action the court took and from that plaintiff appealed to our court. There was no final judgment in the cause. That order was not a final judgment and our court very properly dismissed the appeal "but without prejudice." That left the cause unadjudicated in the trial court but still left the question of the right action of the court in setting aside the default in the case. As there has since been a final judgment and that question is saved, we will review it.

We find, as said, no error in the action of the trial court in setting aside the default.

After that, and after the case went back to the trial court, the plaintiff filed an amended petition, and the defendant answered. Without further objection or...