Buchholz v. Manzella

• Decision Date: 26 January 1942
• Docket Number: No. 19981.,19981.
• Parties: BUCHHOLZ v. MANZELLA.
• Court: Missouri Court of Appeals

158 S.W.2d 200

BUCHHOLZ v. MANZELLA.

No. 19981.

Kansas City Court of Appeals. Missouri.

January 26, 1942.

Appeal from Circuit Court, Jackson County; John F. Cook, Judge.

"Not to be published in State Reports."

Action by Walter Buchholz against Thomas Manzella, doing business as American Cab Company, for damages to an automobile resulting from a collision. On defendant's appeal from justice court, judgment was rendered for the plaintiff, and thereafter court ordered execution quashed and judgment to be set aside, and plaintiff appeals.

Reversed.

Thos. J. Brown, Kenneth W. Tapp, Omar E. Robinson, and Brown & Edwards, all of Kansas City, for appellant.

James Daleo, of Kansas City, for respondent.

BOYER, Commissioner.

This appeal questions the right of the trial court to set aside a final judgment on motion for that purpose filed at a term of court subsequent to the judgment term. The abstract of the record presented here shows that on October 2, 1940, and during the September, 1940, term of the Circuit Court of Jackson County and in Division No. 2 thereof, there was entered the following:

"Judgment

"Now on this day pursuant to notice this cause coming on for trial, plaintiff appears by attorney and defendant fails to appear and prosecute its appeal, and on request of plaintiff the judgment of the Justice of the Peace is affirmed.

"It is therefore ordered and adjudged by the Court in accordance with the judgment of the Justice of the Peace rendered in this cause on the 2nd day of April, 1935, in favor of the plaintiff and against the defendant for the sum of One Hundred Dollars ($100.00) be and the same is affirmed, and that plaintiff have and recover of and from the defendant, and Ralph J. Anderson, surety on defendant's appeal bond, the sum of One Hundred Dollars ($100.00) with interest thereon from the 2nd day of April, 1935, at the rate of six per cent per annum together with all costs herein incurred and expended and have execution therefor."

Nothing further was done during the September term, but thereafter on December 2, 1940, and during the November, 1940 term, defendant filed in said court and in said cause the following:

"Motion to Quash Execution and Set Aside Judgment

"Comes now the above named defendant and moves the Court to set aside the judgment heretofore rendered in this cause and to quash the execution herein for the following reasons, to-wit:

"1. That the statement filed herein does not give this Court jurisdiction to render a judgment in the cause.

"2. That the transcript filed in said cause is insufficient to confer jurisdiction upon the Court.

"3. That this cause was called for hearing and that the defendant was not notified of the time and place of the trial of said cause.

"4. That the judgment in said cause was rendered without the hearing of any evidence.

"5. That this cause was appealed from the justice court and must be heard de novo in the Circuit Court, and that the Circuit Court heard no evidence upon which to base a judgment in said cause, and for that reason the judgment is void.

"6. That defendant has a good and just defense to said cause of action, for the reason that at the time and place said collision is alleged to have taken place, the driver of said automobile was not acting within the scope of his authority, and that the negligence causing said accident was the negligence of the plaintiff herein and not because of negligence on the part of the driver of defendant's automobile; and that even if the driver of defendant's car was negligent, that the amount of damage to plaintiff's car did not exceed the sum of twenty-five dollars ($25.00).

"7. Defendant further states that this cause was not listed for trial as provided by the rules of the Circuit Court of Jackson County, Missouri.

"8. That this cause was not assigned to a division as required by the rules of the Circuit Court of Jackson County, Missouri.

"9. That defendant did not waive a jury in this cause and, therefore, was deprived of his right to a trial by jury.

"10. Defendant further states that if he had known said cause was set for trial, that he would have had an attorney, been present, and would have presented his defense to this cause."

Thereafter, and on December 9, 1940, at the November term of said court, both parties being represented by counsel, the court heard evidence on said motion and entered the following:

"Order

"The defendant's motion to quash execution and set aside judgment heretofore entered by this Court and appearing in record 225, page 405, is by the court taken up, the plaintiff appearing by his attorney, Thomas J. Brown, and defendant by his attorney, James Daleo, and the Court after hearing the evidence and examining the record and being fully advised in the premises, it is,

"Therefore Ordered and Adjudged that the judgment heretofore entered in this cause on October 2nd, 1940, appearing in Book 225, page 405, is hereby set aside and for naught held.

"Execution is hereby ordered quashed and is hereby recalled, and the sheriff is directed to release all levies made under said execution."

Plaintiff duly appealed and assigns error in that none of the grounds set out in the motion is sufficient in law to authorize such action after the expiration of the term at which said judgment became final; and (2) that the court erred in attempting to assume jurisdiction over its judgment rendered at a prior term because under the grounds set forth in the motion the court was without power or authority in law to enter any order affecting its validity. Numerous cases are cited in support of the points and brief of appellant. There was no brief presented in behalf of respondent.

The sole question here is whether or not the court had the power and the right under the motion to set the judgment aside after the lapse of the term at which it was rendered. The light in which a motion of the character here presented might be considered is fully discussed and determined in the case of Jeude v. Sims, 258 Mo. 26, 166 S.W. 1048. From the exposition of the law as there declared, as well as in many subsequent cases, it appears...