Byrd v. Brown

• Decision Date: 06 October 1982
• Docket Number: No. 12378,12378
• Citation: 641 S.W.2d 163
• Parties: Eli BYRD, Ruby Byrd, Ella Mae Byrd, Dave Carter and Alberta Carter, Plaintiffs-Respondents, v. James BROWN, Charles Jacks and the City of Cabool, Missouri, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 163

641 S.W.2d 163

Eli BYRD, Ruby Byrd, Ella Mae Byrd, Dave Carter and Alberta Carter, Plaintiffs-Respondents, v. James BROWN, Charles Jacks and the City of Cabool, Missouri Defendants-Appellants.

No. 12378.

Missouri Court of Appeals,

Southern District,

En Banc.

Oct. 6, 1982.

Gary T. Nelms, Mark L. McQueary, Jones, Keeter, Karchmer, Nelms & Sullivan, Springfield, John Alpers, Jr., Cabool, for defendants-appellants.

Michael L. Shortridge, John D. Eakes, Shortridge & Eakes, Willow Springs, for plaintiffs-respondents.

HOGAN, Judge.

This is a second appeal in the same case. See Byrd v. Brown, 613 S.W.2d 695 (Mo.App.1981). Our jurisdiction is challenged by plaintiffs' motion to dismiss the appeal. To preserve some sense of coherence in the opinion, we must first consider the present state of the record, bearing in mind that all matters directly or inferentially decided on the first appeal have become the law of the case unless the former ruling was palpably wrong or there has been a substantial change in the facts. Lonnecker v. Borris, 245 S.W.2d 53, 55 (Mo.1951); Norris v. Bristow, 361 Mo. 691, 699, 236 S.W.2d 316, 319, 26 A.L.R.2d 366, 370-371 (1951). We adhere to our former ruling; there has been no change whatever in the facts. The principle called the "law of the case" applies.

Plaintiffs averred in their petition that on January 17, 1977, employees of the City of Cabool negligently set fire to plaintiffs' building, causing damage to the building and its contents. The cause was tried to the Circuit Court of Texas County, sitting without a jury, on November 17, 1978. Honorable Weldon W. Moore, a regular judge of the 25th Judicial Circuit, presided. At the conclusion of the trial, Judge Moore made a minute entry upon his docket sheet. If this docket entry--which we shall presently set out at length--is regarded as a judgment, plaintiffs Byrd had judgment against all three defendants in the amount of $45,723.00 on November 17, 1978.

Upon notice, but without an opportunity to be heard, Judge Moore made the following minute entry on November 20:

"Court of its own motion sets aside the judgment in favor of Eli Byrd, Ruby Byrd and Ella Mae Byrd and against James Brown, Charles Jacks and the City of Cabool as defendants and grants a new trial. Court also on its own motion sets aside the judgment in favor of defendants and against Dave and Alberta Carter on their claim for loss of profits and plaintiffs Dave and Alberta Carter granted a new trial. Judge Weldon W. Moore disqualifies and transfers cause to Division I where Judge Northern sits."

Thereafter, Judge Moore made some further entries in the docket, all attempting to grant defendants a new trial. On December 7, 20 days after the court made its original entry, plaintiffs filed a motion to vacate the order of November 20 on the ground that counsel had notice of Judge Moore's intention to grant a new trial but were afforded no opportunity to be heard. The motion was addressed to Judge Eugene E. Northern, the other regular judge of the 25th Circuit, but Judge Moore's actions taken after November 20 prevented the motion's being heard. Plaintiffs then sought relief by prohibition. The writ was denied here and by our Supreme Court which, however, denied the writ without prejudice to plaintiffs' right to appeal to this court. Plaintiffs appealed. The court held, inferentially at least, that the trial court's minute entry is a final judgment if the entry is complete enough to constitute a final determination of the rights of the parties. Byrd v. Brown, supra, 613 S.W.2d at 698-699[6-8]. The notice of appeal was directed to an order granting a new trial made on December 16, 1978, but this court, in the discharge of its duty to dispose finally of the case, Mo.R.Civ.P. 84.14 (12th ed. 1981), held that the order of November 20 was invalid because plaintiffs had been afforded no opportunity to be heard and further held, upon the authority of State ex rel. Peabody Coal Co. v. Powell, 574 S.W.2d 423 (Mo.banc 1978) and State ex rel. Ellis v. Creech, 364 Mo. 92, 259 S.W.2d 372 (banc 1953), that having disqualified himself, Judge Moore was bound to surrender jurisdiction and all orders entered after November 20 were invalid. Byrd v. Brown, supra, 613 S.W.2d at 699-700[9-11]. Our mandate ran on April 2, 1981, and read as follows:

"On this day, the Court, being sufficiently advised of and concerning the premises, does consider and adjudge that the order of December 16, 1978, rendered herein by the Circuit Court of Texas County be reversed, annulled and for naught held and esteemed."

Thereafter, the trial court entered a formal judgment as a separate document on May 22, 1981. The judgment simply recites the findings made by the trial court on November 17, 1978. On June 5, 1981, defendants moved this court for an order permitting a late notice of appeal. Leave was granted, subject to a determination whether the appeal was timely.

Maintaining the court has no jurisdiction of the appeal, plaintiffs argue that the trial court's minute entry dated November 17, 1978, was a judgment; that 30 days thereafter it became a final and appealable judgment; that all orders made thereafter were void; that the record stands as if the trial court had never acted after November 17 and therefore on June 17, 1979, 6 calendar months after the judgment became final and appealable, this court lost jurisdiction to grant leave to appeal by special order pursuant to Mo.R.Civ.P. 81.07(a) ( 12th ed. 1981). We are cited to Caldwell Paint Mfg. Co. v. Lebeau, 591 S.W.2d 1 (Mo.App.1979), in support of plaintiffs' argument concerning the state of the record, and if plaintiffs are correct, we cannot entertain this appeal, even if we suspended the rules or the parties agreed to submit the appeal. Foster v. State, 590 S.W.2d 912 (Mo.banc 1979); State v. Lindner, 498 S.W.2d 754 (Mo.banc 1973).

Defendants respond with the argument that the minute entry of November 17, 1978, was in no sense a "judgment" and therefore there was no judgment until the trial court entered its formal judgment on May 22, 1981. In support of this argument, defendants cite Elmore v. Whorton, 581 S.W.2d 950 (Mo.App.1979); Cornelius v. Tubbesing, 576 S.W.2d 753 (Mo.App.1979); Gray v. Bryant, 557 S.W.2d 489 (Mo.App.1977); Corley v. McGaugh, 555 S.W.2d 376 (Mo.App.1977); Riverside Chemical Co. v. Hawkins, 555 S.W.2d 369 (Mo.App.1977); Cochran v. DeShazo, 538 S.W.2d 598, 600-601[5, 6] (Mo.App.1976); and Williams v. Williams, 480 S.W.2d 525 (Mo.App.1972). In addition, counsel might have cited Byrd v. McGinnis, 299 S.W.2d 455, 460 (Mo.1957) and McCoy v. Simpson, 344 Mo. 215, 217, 125 S.W.2d 833, 834 (1939).

To consider the question of jurisdiction, specifically whether the appeal is timely, we must resolve a number of questions, not necessarily as tendered by the parties.

The first of these questions is whether a minute or docket entry may constitute a judgment. The answer is: Most certainly. The act, after the trial and final submission of a case of pronouncing judgment in language which fully determines the rights of the parties to the action, and leaves nothing to be done except the entry of the judgment by the clerk, constitutes the rendition of the judgment. State ex rel. Green v. Henderson, 164 Mo. 347, 360, 64 S.W. 138, 141 (banc 1901); Byrd v. Brown, supra, 613 S.W.2d at 698-699 and cases cited n. 3. And, as stated by our Supreme Court in Fleming v. Clark Township of Chariton County, 357 S.W.2d 940, 942 (Mo.1962):

" 'The entry or recording of the instrument does not constitute an integral part of, and should not be confused with, the judgment itself. Consequently, the judgment itself is not that which may be entered or recorded, but that which is considered and delivered by the court....' "

So, rescription of a docket entry onto a separate paper or into a "firmly bound book" effects no transmutation from "docket entry" or "mere" docket entry into a judgment.

A word of caution is appropriate. The general rules just cited furnish neither an infallible guide nor specific criteria by which to determine whether a particular, specific writing is a judgment sufficient to support an appeal. Even very careful students acknowledge that "There can be difficulty in identifying, in a purely mechanical sense, what is the final judgment." F. James and G. Hazard, Civil Procedure, § 13.4, p. 670, n. 2 (2d ed. 1977). In the absence of a rule requiring the judgment to be a separate document, the sufficiency of a particular writing to support an appeal is, and will continue to be the subject of apparently conflicting rulings. See: 11 C. Wright and A. Miller, Federal Practice and Procedure §§ 2781, 2782 (1973); Annot., 73 A.L.R.2d 250 (1960). We have examined the precedents carefully; the only useful rule of thumb we have found is that laid down in Magee v. Mercantile-Commerce Bank & Trust Co., 339 Mo. 559, 561, 98 S.W.2d 614, 616 (1936): We should "[overlook] the omission of mere matters of form and [hold] that [the] judgment is sufficient to support an appeal 'when it appears to have been intended by some competent tribunal as the determination of the rights of the parties to an action, and shows in intelligible language the relief granted.' " See also Stith v. J.J. Newberry Co., 336 Mo. 467, 495, 79 S.W.2d 447, 461 (1934). We bear in mind that our Supreme Court may have intended its Administrative Rule 4, particularly § 4.12 ¹ to require that the judgment be entered as a separate document, as does Fed.R.Civ.P. 58(2). That rule, however, has not yet been authoritatively construed, and this court has neither the authority nor the inclination to attempt such a construction.

The particular minute entry--or judgment--in question here was governed by the provisions of Mo.R.Civ.P. 73.01 (9th ed. 1978). Rule 73.01.1(b) then provided that "The court shall render such judgment as it thinks proper under the law and the evidence...." Rule...