Cairo Brewing Co. v. Hogg

• Court: Missouri Court of Appeals
• Writing for the Court: Cox
• Citation: Cairo Brewing Co. v. Hogg, 125 S.W. 831, 141 Mo. App. 391 (Mo. App. 1910)
• Decision Date: 07 February 1910
• Parties: CAIRO BREWING CO. et al. v. HOGG.

125 S.W. 831

141 Mo. App. 391

CAIRO BREWING CO. et al. v. HOGG.

Springfield Court of Appeals. Missouri.

February 7, 1910.

Rehearing Denied February 28, 1910.

1. DISMISSAL AND NONSUIT (§ 43) — EFFECT OF DISMISSAL — REINSTATEMENT.

Where a case is dismissed by plaintiff, the court's jurisdiction to reinstate it terminates with the term, after which the court can make no orders without the voluntary appearance and consent of all the parties.

2. COSTS (§ 199) — MOTION TO TAX — FILING — TIME.

A motion to tax costs may be filed after the term at which the case is disposed of.

3. DISMISSAL AND NONSUIT (§ 43) — REINSTATEMENT OF CAUSE — TRIAL ON MERITS.

The filing of a motion to tax costs after the term at which the cause had been voluntarily dismissed by plaintiff by one not a party to the record, did not reinstate the case for trial on the merits.

4. DISMISSAL AND NONSUIT (§ 43) — JURISDICTION — DISMISSAL.

A case having been dismissed, one not a party to the record moved, after the term, to reinstate the case for the purpose of taxing costs, to which defendant made no appearance. The motion having been granted, plaintiff and the moving party thereafter appeared, and an order was entered that "by consent of the parties" the case was continued. No appearance was made by defendant, however, until the day judgment was rendered on the merits in his favor, at a subsequent term. Held, that the order granting the continuance had reference only to the parties then before the court, not including the defendant, and that defendant's subsequent appearance was insufficient to confer jurisdiction on the court to then try the case on its merits.

Error to Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by the Cairo Brewing Company and others against James R. Hogg. Judgment for defendant, and plaintiffs bring error. Reversed.

The history of this case is substantially as follows: The sheriff of Butler county had levied upon 205 cases of beer, under two writs of attachment; one in case of Paul Jones & Co. v. Gray & Co., the other in the case of W. B. Hays Bottling Company v. Gray & Co. After these levies and seizure of the property by the sheriff, the Cairo Brewing Company brought suit in replevin against the sheriff, James Hogg, and secured possession of the beer. At the April term, 1907, a compromise was entered into between the plaintiff Cairo Brewing Company and the attaching creditors, by which the property secured by the brewing company, under this writ of replevin, was released to it, and the plaintiff then dismissed the suit in replevin, and nothing further was done at that term. At the July term, 1907, Paul Jones & Co. appeared in court, and in the case of Paul Jones & Co. v. Gray & Co. — being one of the attachment suits aforesaid — filed a motion, asking that the case of Cairo Brewing Company v. Hogg, which had been dismissed at the previous term of court, be reinstated, and alleging as grounds therefor that the brewing company and the attaching creditors had compromised their matters, and in the compromise the attached property had been released to the brewing company, and the brewing company had agreed to pay the costs in the case of Paul Jones & Co. v. Gray & Co., and had refused to do so, and they prayed the court to reinstate that case and make an order therein, requiring the brewing company to pay said costs as it had agreed to do. This motion was sustained, and the case of the Cairo Brewing Company v. Hogg ordered redocketed and case continued, but no action taken as to taxing costs. Notice of the filing of this motion had been served on the attorney of the brewing company two days before filing it, but there was no appearance by the brewing company at that term. This case was then continued to the next term. At the October term, 1907, an order was made in case of Cairo Brewing Company v. Hogg, redocketing it and continuing it until the next term. At the January term, 1908, the case was continued to the next term. During all this time there was no appearance by any party except Paul Jones & Co., who filed the motion to reinstate. At the April term, 1908, plaintiff Cairo Brewing Company appeared and filed a motion to strike the case from the docket, alleging as grounds therefor that the case had been compromised and settled and the costs paid, and the attached property released to plaintiff, and hence there was nothing for the court to try. No action was ever taken on this motion. At the October term, 1908, the record shows a continuance "by agreement of the parties hereto." At the January term, 1909, the record shows a judgment in the case in favor of defendant, Hogg, in the replevin action, and against the plaintiffs, Cairo Brewing Company, and W. A. Smith and George D. Kirkhoff, their sureties on the replevin bond, which adjudged the defendant entitled to the possession of the property, and assessing its value at $400, and damages at $78. Plaintiff did not appear at that term.

Lew R. Thomason, for plaintiffs in error. Phillips & Phillips, for defendant in error.

COX, J. (after stating the facts as above).

The question to be determined here is the validity of the judgment entered at the January term, 1909. We first observe...