Bussiere v. Sayman

Decision Date04 February 1913
Citation153 S.W. 507
PartiesBUSSIERE v. SAYMAN.
CourtMissouri Court of Appeals

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Action by Bertram J. Bussiere, doing business as the Classified Ad Company, against T. M. Sayman. From an order setting aside a final default judgment, plaintiff appeals. Cause certified to the Supreme Court for final determination.

Charles A. Houts and Frank A. Habig, both of St. Louis, for appellant. Leahy Saunders & Barth, of St. Louis, for respondent.

NORTONI, J.

This is an appeal from an order of the court setting aside a final judgment by default, and the immediate question for consideration pertains to the right of appeal in such cases. The suit is on account for the reasonable value of advertising placed by defendant for plaintiff under a contract.

It appears that defendant was duly summoned more than 30 days before to answer plaintiff's petition on the first day of the October term, 1910, but he defaulted, and came not. Thereafter, and during the October term of court, to wit, on November 25, 1910, an interlocutory judgment by default was entered against defendant and the cause continued. At and during the succeeding December term, 1910, of the court, and on the 4th day of January, 1911, the cause came on for hearing, and an inquiry of damages was had. Defendant, though duly called, came not, and, after the evidence was heard, the court gave judgment for plaintiff for the sum of $3,693.95. Fourteen days thereafter, and during the same, or December, 1910, term of court, and on the 18th day of January, 1911, defendant appeared, and by his motion in writing moved the court to set aside the judgment rendered against him. Thereafter, on March 20, 1911, and during the February term, 1911, of the court, to which the motion had been continued, the motion to set aside the judgment was sustained by the court, and by its order of record the final judgment entered January 4, 1911, was set aside and vacated.

It is argued by defendant that no appeal lies from an order setting aside a final default judgment, and it is said for that reason this one should be dismissed. We entertain no doubt that the statute authorizes an appeal in this case, but, in view of the decision of the Supreme Court in Crossland v. Admire, 118 Mo. 87, 24 S. W. 154, we believe the question is concluded here, for obviously the identical proposition is within the scope of the judgment of that court in that case. The statute (section 2038, R. S. 1909) authorizing appeals is as follows: "Any party to a suit aggrieved by any judgment of any circuit court in any civil cause from which an appeal is not prohibited by the Constitution, may take his appeal to a court having appellate jurisdiction from any order granting a new trial, or in arrest of judgment, or order refusing to revoke, modify or change an interlocutory order appointing a receiver or receivers, or dissolving an injunction, or from any interlocutory judgments in actions of partition which determine the rights of the parties, or from any final judgment in the case, or from any special order after final judgment in the cause; but a failure to appeal from any action or decision of the court before final judgment shall not prejudice the right of the party so failing to have the action of the trial court reviewed on an appeal taken from the final judgment in the case. The Supreme Court shall summarily hear and determine all appeals from orders refusing to revoke, modify or change an interlocutory order appointing a receiver or receivers, and for that purpose shall, on motion, advance the same on...

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11 cases
  • Bussiere's Adm'R v. Sayman
    • United States
    • Missouri Supreme Court
    • April 2, 1914
    ...J. Bussiere's administrator, William H. Foster, against T. M. Sayman. There was a judgment of the St. Louis Court of Appeals (171 Mo. App. 11, 153 S. W. 157) dismissing appeal from an order vacating a default judgment, and the St. Louis Court of Appeals certified the case to the Supreme Cou......
  • State v. Arnold
    • United States
    • Missouri Supreme Court
    • July 13, 1927
    ...an order setting aside a judgment by default was squarely presented to the St. Louis Court of Appeals in the case of Bussiere v. Sayman, 171 Mo. App. 11, 153 S. W. 507, and that court held that the case was not appealable, but certified the same to this court because of the conflict between......
  • Foster v. Sayman
    • United States
    • Missouri Court of Appeals
    • November 23, 1915
    ... ... Dissenting Opinion January 4, 1916 ...         Appeal from St. Louis Circuit Court; James E. Withrow, Judge ...         "Not to be officially published." ...         Action by William H. Foster, administrator of the estate of Bertram J. Bussiere, deceased, against T. M. Sayman. Judgment for defendant, dismissing the action, and plaintiff appeals. Affirmed ...         See, also, 171 Mo. App. 11, 153 S. W. 507; 257 Mo. 303, 165 S. W. 796 ...         Charles A. Houts and Frank A. Habig, both of St. Louis, for appellant ... ...
  • Jackson v. Wheeler
    • United States
    • Missouri Court of Appeals
    • April 18, 1978
    ...is an order from which an appeal may be granted." The cases are in conflict on this point. Dillbeck does not mention Bussiere v. Sayman, 171 Mo.App. 11, 153 S.W. 507 (1913), certified to the Supreme Court, Bussiere's Adm'r v. Sayman, 257 Mo. 303, 165 S.W. 796 (Mo. banc 1914), Stanton v. Han......
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