Bussmann v. Bussmann
| Citation | 573 S.W.2d 462 |
| Decision Date | 07 November 1978 |
| Docket Number | No. 39463,39463 |
| Parties | Billie BUSSMANN, Appellant, v. Harry T. BUSSMANN, Jr., Respondent. . Louis District, Division Three |
| Court | Court of Appeal of Missouri (US) |
Clayton & Karfeld, Charles S. Clayton, St. Louis, for appellant.
Donald Weyerich, LaTourette & Weyerich, Clayton, for respondent.
Plaintiff-wife Billie Bussmann (hereafter "plaintiff") appeals from the trial court's judgment denying her petition for separate maintenance, to which defendant had answered by a general denial.
Plaintiff does not contend her evidence was sufficient to show defendant-husband's abandonment and non-support. Clearly it did not. Plaintiff contends, however, that such proof was unnecessary because "these facts were admitted in the interlocutory judgment." This contention must fail for the basic reason that the record fails to show there ever was an interlocutory judgment. We examine the record.
December 10, 1976. Defendant not having answered plaintiff's interrogatories, the court ordered defendant to do so within twenty days. He belatedly complied.
January 26, 1977. Plaintiff moved for a default judgment on the ground defendant's answers to plaintiff's interrogatories were incomplete.
March 4, 1977. Court granted defendant thirty days to answer interrogatories completely "or petitioner's motion for default shall be granted."
April 5, 1977. Upon plaintiff's oral motion the court ordered "Default and inquiry granted . . . and cause set for trial on April 13, 1977." 1
April 13, 1977. Parties appeared and without objection announced ready for hearing on plaintiff's petition. Evidence adduced. Trial concluded; court found plaintiff had not shown abandonment or failure to support. Petition denied.
As said, plaintiff contends the trial court's April 5 order of "default and inquiry granted" was an interlocutory judgment which precluded an adverse judgment on the merits. She relies on Sumpter v. J. E. Sieben Construction Company, 492 S.W.2d 150(8-10) (Mo.App.1973). That case is not in point because there, unlike the present case, defendant had failed to answer and a final default judgment was entered upon plaintiff's evidence of damages.
We deny plaintiff's contention that the "default and inquiry" order is tantamount to a default judgment which precluded evidence on the merits of her case. This is squarely refuted by the parallel case of J. G. Jackson & Associates v. Mosley, 308 S.W.2d 774(3) (Mo.App.1958). There, as here, after defendant had filed an answer, the court entered an order: Four days later ...
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Brommelhorst v. Auto. Club Inter-Ins. Exch.
...not tantamount to a default judgment which precludes evidence on the merits of a plaintiff's case. See Kiser, 403 S.W.3d at 131; Bussmann, 573 S.W.2d at 463. [10] We note Auto Club is not bound Johnson's failure to respond to Plaintiffs' requests for admissions for the additional reason tha......
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Caldwell Paint Mfg. Co. v. Lebeau
...a party have been stricken pursuant to the authority of Rule 61.01 by reason of a failure or refusal to make discovery. Bussmann v. Bussmann, 573 S.W.2d 462 (Mo.App.1978); In re Marriage of Dickey, 553 S.W.2d 538, 539(1) (Mo.App.1977). And the term has been applied to judgments entered afte......