City of Montgomery v. Newson, 33861

• Decision Date: 15 June 1971
• Docket Number: No. 33861,33861
• Parties: CITY OF MONTGOMERY, Missouri, a Municipal Corporation, Plaintiff-Respondent, v. George NEWSON et al., Defendants, Herbert H. Bracht, Petitioner-Appellant.
• Court: Missouri Court of Appeals

Page 54

469 S.W.2d 54

CITY OF MONTGOMERY, Missouri, a Municipal Corporation, Plaintiff-Respondent, v. George NEWSON et al., Defendants, Herbert H. Bracht, Petitioner-Appellant.

No. 33861.

St. Louis Court of Appeals, Missouri.

June 15, 1971.

James G. Gregory, Montgomery City, for petitioner-appellant.

McQuie & Deiter, Montgomery City, for plaintiff-respondent.

Lewis, Rice, Tucker, Allen & Chubb, Daniel P. Reardon, St. Louis, for defendants.

SMITH, Commissioner.

Herbert Bracht appeals from the order of the Circuit Court denying his motion to intervene after judgment in an annexation case.

Plaintiff City brought this action pursuant to Section 71.015, RSMo (V.A.M.S.) seeking a declaratory judgment authorizing annexation of land outside its corporate limits. The action was brought as a class action, as prescribed by the statute, and in the original and first amended petitions Bracht was a named defendant. Bracht was an owner of land situated in part in the area to be annexed but actually resided in Cabool in Texas County. For reasons not entirely clear from the record, Bracht was never served with process, and was not a named defendant in the second amended petition. Service was had on the remaining named defendant. Three class representatives answered the second amended petition and were represented by counsel at the trial on July 9, 1969. On that day following the hearing on plaintiff's second amended petition the court entered its declaratory judgment approving the annexation. The court made a specific finding that: 'The Defendants specifically named and who have been served with process and who have voluntarily entered their appearance herein have been fairly chosen and adequately and fairly represent the whole class of landowners whose property lies within the area of land proposed to be annexed; * * *'

On August 6, 1969, Bracht filed his 'Motion To Intervene, To Set Aside Judgment, And To Reopen The Evidence', and his answer to the second amended petition. No hearing was held on that motion until October 8, 1969, at which hearing the city contended the court had lost jurisdiction over the judgment by lapse of time. On October 13, the court overruled without explanation Bracht's motion.

We find it unnecessary to explore certain contentions of respondent urged to uphold the order appealed from, such as Bracht's standing to intervene since he is not an 'inhabitant' of the area to be annexed, and the question of timeliness of the motion to intervene. We base our decision instead on the loss of jurisdiction over the judgment by the trial court after thirty days from its entry. Supreme Court Rule 75.01, V.A.M.R., provides that 'The trial court retains control over judgments during the 30 day period after entry of judgment and may vacate, reopen, correct, amend or modify its judgment for good cause within the time.'

The courts of this state have consistently held that in the absence of a proper and timely after-trial motion the trial court loses the power after thirty days from entry of the judgment of modify, amend, reopen or otherwise control the judgment. See Berry v. Chitwood, Mo., 362 S.W.2d 515(1--4) and cases cited therein. No timely after-trial motion as provided in Supreme Court Rule 72.02 was filed here. The trial court had no power here after August 8, 1969, to reopen the judgment and permit the intervention of Bracht. It had lost the power and the jurisdiction to control the judgment.

Appellant seeks to bring this case within the exceptions to the above rule found in Berry v. Chitwood, supra, and State ex rel. Aubuchon v. Jones, Mo.App., 389 S.W.2d 854. In Berry v. Chitwood, the parties agreed to a modification of a judgment more than thirty days after its entry. Acknowledging that the parties could not by consent confer jurisdiction upon the court to amend the judgment, the court held the parties could by consent waive the formal allegation and proof of some authorized ground for the court to exercise its jurisdiction to enter the new judgment. Examples would be a nunc pro tunc order or a correction of irregularities patent. That case has no pertinence ot this case. No consent was ever made to reopening the judgment and in fact appellant's motion was vigorously opposed by the city on the basis that the court had no power to reopen the judgment.

Nor do we believe the Jones case benefits appellant. That litigation also involved an annexation petition. None of the named defendants who represented the class filed answers or otherwise appeared and a default and inquiry was granted. Certain landowners then sought to...